United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE TREASURY,
U.S. MINT, Denver, CO, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 09-551
Issued: December 28, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 19, 2008 appellant filed a timely appeal from a March 4, 2008 merit
decision of the Office of Workers’ Compensation Programs reducing his compensation benefits
based on his wage-earning capacity, a June 26, 2008 decision, a November 20, 2008 merit
decision terminating medical benefits and a December 4, 2008 decision affirming the wageearning capacity determination. The Board has jurisdiction of the merits of this case pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s medical benefits
for his back strain, aggravation of osteoarthritis, neck sprain and psychogenic pain disorder; and
(2) whether the Office properly reduced his compensation based on its finding that he had the
capacity to earn wages as a cashier II.

FACTUAL HISTORY
On March 29, 2000 appellant, then a 47-year-old machine tool operator, filed an
occupational disease claim alleging that he sustained a back condition due to factors of his
federal employment. The Office accepted his claim for back and neck sprain/strain, permanent
aggravation of osteoarthritis, a fractured right wrist carpal bone, left wrist sprain and
psychogenic pain. Appellant performed his usual work duties until March 30, 2000, when he
was terminated during his probationary period.
By decision dated March 28, 2000, the Office denied appellant’s claim for compensation
beginning March 30, 2000. On May 16, 2001 an Office hearing representative set aside the
March 28, 2000 decision. He instructed the Office to refer appellant for a second opinion
examination to determine whether he was unable to work beginning March 30, 2000 due to his
February 26, 2000 work injury.1
On April 8, 2002 appellant filed a claim for compensation beginning March 30, 2000.2
By letter dated April 30, 2002, the Office noted that on July 15, 2001 he fell injuring his right
arm and neck after a back spasm. Following development of the medical record, it accepted an
aggravation of lumbar degenerative disc disease and paid him wage-loss compensation
retroactive to March 30, 2000. On October 14, 2003 the Office expanded acceptance of the
claim to include a right wrist fracture and left wrist strain.3 Based on the July 23, 2004 report of
John Mark Disorbio, Ph.D., a clinical psychologist, it accepted psychogenic pain.
In March 2007, the Office referred appellant to Dr. Alfred C. Lotman, a Board-certified
orthopedic surgeon, and Dr. Randolph Pock, a Board-certified psychiatrist, for second opinion
evaluations. On March 28, 2007 Dr. Lotman diagnosed status post lumbosacral sprain/strain,
status post subsequent right Colles fracture and status post subsequent cervical strain/sprain. In
response to whether appellant had residuals of his accepted work injuries, he found no objective
evidence of corroborating appellant’s complaints of low back pain and “some contradictory
objective findings on clinical exam[ination].” Dr. Lotman further noted that sprains/strains
resolved within three to six months. He found that appellant had residuals only of the right wrist
fracture due to loss of motion. In a work restriction evaluation, Dr. Lotman found that appellant
could work eight hours per day with restrictions on sitting, walking and standing two hours per
day and restrictions on pushing, pulling and lifting up to 15 pounds on the right side only. He
determined that appellant could twist for two hours per day and bending and stoop for one hour
per day.
In a report dated April 3, 2007, Dr. Pock indicated that he was unable to make a
psychiatric diagnosis as appellant denied a psychological pain condition and attributed his

1

The hearing representative noted that appellant was terminated for cause.

2

By decision dated January 2, 2003, the Board affirmed an August 28, 2001 decision granting an attorney’s fee.
Docket No. 02-123 (issued January 2, 2003).
3

On April 24, 2002 the Social Security Administration determined that appellant was totally disabled.

2

symptoms to other factors. He recommended no further psychological treatment as appellant
reported that he found no benefit in receiving treatment from Dr. Disorbio.
On May 11, 2007 the Office notified appellant of its proposed termination of his
compensation and medical benefits for the conditions of back strain, an aggravation of
osteoarthritis, neck sprain and psychogenic pain.
In a report dated May 15, 2007, Dr. Christopher B. Ryan, an attending Board-certified
physiatrist, stated:
“Looking over Dr. Lotman’s report, there really is not anything to criticize about
it. Strictly speaking, as [appellant’s] condition has been accepted for lumbar and
cervical sprains, and considering the parameters imposed by the statement of
accepted facts, he has reached the usual inevitable conclusions, that such a
condition generally resolves in three to six months. [His] condition is one of
chronic pain. There are no objective findings in such a condition.”
Dr. Ryan recommended no further treatment except medical management.
On May 17, 2007 Dr. Lotman clarified appellant’s work restrictions. He advised that
appellant could work eight hours per day alternating between sitting, walking and standing up to
two hours at a time.
On May 17, 2007 Dr. Disorbio reviewed Dr. Pock’s finding that appellant required no
further psychiatric treatment. He recommended a possible home pain program. On May 29,
2007 Dr. Disorbio opined that appellant “most likely, has completed his care….”
On June 8, 2007 appellant, through his attorney, challenged the termination of his
medical benefits. He argued that the record contained conflicts regarding whether appellant
required further treatment for his accepted work injuries due to his orthopedic and psychiatrist
conditions.
By decision dated June 14, 2007, the Office terminated appellant’s compensation and
medical benefits for the conditions of back and neck sprain, osteoarthritis and psychogenic pain
effective June 14, 2007. It found that he was entitled to wage-loss compensation and medical
treatment for his right wrist fracture. On July 13, 2007 appellant requested an oral hearing on the
June 14, 2007 termination decision.
The Office referred appellant for vocational rehabilitation. In a report dated August 2,
2007, the rehabilitation counselor noted that appellant could work at a sedentary level and
advised that some cashier II positions were at a light level and some were sedentary. On
September 17, 2007 she found that the position of cashier was within appellant’s restrictions,
vocationally suitable and reasonably available within his geographical area.
On September 27, 2007 appellant accepted private employment working 10 hours per
week as a cashier. The Office removed him from the periodic rolls effective September 8, 2007
to prevent an overpayment.

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On November 7, 2007 the rehabilitation counselor noted that appellant refused additional
vocational rehabilitation services after he accepted a 10-hour per week position as a cashier. In a
November 25, 2007 labor market survey, she identified the position of cashier II as requiring
light work with occasional lifting under 20 pounds and frequently lifting under 10 pounds. The
rehabilitation counselor supplied earnings information from employer contract and again found
that the position of cashier II was reasonably available within his geographical location and
noted that he had taken a part-time job as a cashier. She noted that the specific vocational
preparation for the position was a short demonstration of up to 30 days. On October 4, 2007 the
rehabilitation counselor found that there were sufficient positions as a cashier II that required
only sedentary work available within the appropriate geographical location. She determined that
the position was unskilled and did not require training. On November 25, 2007 the rehabilitation
counselor noted that appellant was only restricted in his ability to lifting, carry and pull with his
right upper extremity and could perform all required lifting with his left upper extremity. She
related that she had contacted “a significant number of employers who hire individuals such as
[appellant] for these jobs confirming the job duties do match the injured worker’s restrictions.”
On November 28, 2007 an Office rehabilitation specialist determined that appellant’s
actual earnings did not fairly and reasonably represent his wage-earning capacity as he was
capable of working full time.
In a report dated November 28, 2007, Dr. Ryan diagnosed a permanent aggravation of
preexisting lumbar spondylosis, or lumbar degenerative joint and disc disease. He disagreed
with Dr. Lotman’s opinion that appellant could currently work 40 hours per week and noted that
his finding may have been based on his belief that the accepted condition was only lumbar strain.
Dr. Ryan opined that appellant could work part time in his present position gradually increasing
his hours to full time.
On December 11, 2007 the Office notified appellant of its proposed reduction in his
compensation based on its determination that he could earn wages as a cashier II. On January 9,
2008 appellant’s attorney argued that Dr. Lotman based his finding that appellant could work 40
hours per week on an inaccurate diagnosis of lumbar sprain.
In a report dated January 9, 2008, Dr. Robert I. Kawasaki, a Board-certified physiatrist,
noted that appellant related a history of an injury at work in February 2000 and falls in 2002 and
2005. Appellant was in a motor vehicle accident in 2004. Dr. Kawasaki diagnosed multilevel
spondylosis with degenerative disc changes and potential nerve root impingement.
By decision dated March 4, 2008, the Office finalized its proposed reduction of
appellant’s compensation effective that date. On March 10, 2008 appellant requested an oral
hearing.
By decision dated June 26, 2008, a hearing representative affirmed in part and set aside in
part the June 14, 2007 termination decision. She found that appellant had no further residuals of
his back and neck strain but that a conflict existed regarding the extent of any disability due to
the aggravation of his preexisting lumbar degenerative disc disease.

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On July 28, 2008 appellant’s attorney withdrew his request for an oral hearing on the
March 4, 2008 decision and requested a review of the written record. He asserted that the record
contained a conflict regarding the number of hours that appellant could work. Counsel asked
that the decision be held in abeyance pending the impartial medical examination.
On August 8, 2008 Dr. Jeffrey Sabin, a Board-certified orthopedic surgeon, listed
findings on examination and diagnosed left back and leg pain of unknown etiology.4 On
August 14, 2008 he diagnosed degenerative changes at L5-S1 and L4-5 by history developed
slowly. Dr. Sabin noted that appellant did not relate a work injury but found based on his review
of evidence that it was apparently “a work-related situation.” He diagnosed degenerative
spondylosis that may be work related. Dr. Sabin found that there were “simply no objective
indicators to directly determine that [appellant] cannot work 40 hours a week….” He noted that
he might require restrictions against twisting, bending and stooping due to his degenerative back
condition.
On September 4, 2008 the Office referred appellant to Dr. John Douthit, a Board-certified
orthopedic surgeon, for an impartial medical examination.5 In a report dated October 20, 2008,
Dr. Douthit discussed appellant’s history of injury and current complaints. He reviewed the
medical evidence of record, including the results of diagnostic studies and listed detailed findings
on examination. Dr. Douthit found that appellant’s injury may have mildly accelerated
preexisting degenerative disc disease but that the progression was mostly due to aging and
deconditioning. He stated:
“As evidence of this his first MRI [scan] [study] already had significant chronic
changes and his MRI [scan] [study] of 2007 only showed the natural progression
of this disease. In the 2007 MRI [study] there was significant progression despite
the fact that he had [not] stressed his back from work in seven years. Detracting
also from the argument for causation is a history of a back injury and aggravation
while working at Coors prior to his employment at the [employing establishment].
In conclusion however, as federal guidelines do not allow apportionment for
preexisting impairment, the work injury must therefore be accepted as the cause
of his current impairment and work restrictions.”
Dr. Douthit found that appellant could not perform his date-of-injury job because of his
disc disease but that there was “no reasonable argument that he cannot work now full time in a
lighter capacity within the restrictions that have been advised.” He stated, “I find his complaint
and excuse for not working that his left leg “goes out” and left thigh pain with standing and
walking are without substantiation by objective findings and consider this to be either factitious
or psychological. There are no objective findings to support this claim.” Dr. Douthit concluded
that appellant would not benefit from further treatment but would benefit from weight loss and
4

The Office initially referred appellant to Dr. Sabin but cancelled this appointment after finding out that he had
examined appellant as an attending physician after it scheduled the appointment.
5

On October 18, 2008 his attorney objected to the selection to the impartial medical examiner. Counsel
contended that the Office bypassed physicians geographically closer in selecting Dr. Douthit. He submitted a list of
qualified specialists within appellant’s zip code. On October 22, 2008 the Office provided the attorney with
documentation of its selection of Dr. Douthit using the Physician’s Directory System.

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exercise. In a work restriction evaluation, he determined that appellant could walk and stand for
two hours per day during an eight-hour day and push, lift and pull up to 20 pounds for eight
hours per day.
By decision dated November 20, 2008, the Office modified its June 14, 2007 termination
decision to reflect that appellant sustained a permanent aggravation of preexisting degenerative
disc disease. It found that he could work full time with restrictions in accordance with
Dr. Douthit’s assessment. The Office concluded that appellant did not require any further
medical treatment for the permanent aggravation of preexisting degenerative disc disease but that
his case remained open for compensation and medical treatment for the right wrist fracture.
Following a review of the written record, by decision dated December 4, 2008, a hearing
representative affirmed the March 4, 2008 wage-earning capacity determination.
LEGAL PRECEDENT -- ISSUE 1
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
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.8 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.9 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.10
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained back and neck strain due to factors of his
federal employment. It subsequently expanded acceptance to include a permanent aggravation
of osteoarthritis, a fractured right wrist carpal bone, left wrist sprain and psychogenic pain. The
6

Pamela K. Guesford, 53 ECAB 727 (2002).

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Id.

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

10

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

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Office terminated appellant’s medical benefits for the back and neck strain, aggravation of
osteoarthritis, left wrist sprain and psychogenic pain condition.
In a report dated March 28, 2007, Dr. Lotman, an Office referral physician, found that
appellant had no objective evidence of his low back or neck sprain. Regarding the question of
whether appellant had any further residuals of his back sprain, osteoarthritis, fractured carpal
bone, left wrist sprain and neck sprain, he noted that appellant complained only of pain in his
low back. Dr. Lotman found some loss of motion in the right wrist but no other objective
findings supporting residuals of any work-related condition. On May 15, 2007 Dr. Ryan
reviewed and concurred with Dr. Lotman’s finding that appellant’s cervical and lumbar sprains
had resolved, noting that sprains resolved within three to six months. The Board finds that the
Office properly terminated appellant’s medical benefits for the conditions of back and neck
strain/sprain and left wrist sprain based on the reports of Drs. Lotman and Ryan.11
On April 3, 2007 Dr. Pock asserted that he was unable to diagnose any psychiatric
condition. He noted that appellant denied a psychological pain condition and specifically
attributed any symptoms to other conditions. Dr. Pock found that appellant did not need further
medical treatment as appellant found his current treatment unhelpful. In a report dated May 29,
2007, Dr. Disorbio, appellant’s attending psychologist, found that appellant had completed his
care. The Office, consequently, met its burden of proof to terminate medical benefits for the
accepted condition of psychogenic pain.
The Office determined that a conflict existed between Dr. Lotman and Dr. Ryan
regarding whether appellant had further residuals of his accepted aggravation of osteoarthritis. It
referred him to Dr. Douthit for an impartial medical examination.12 When a case is referred to an
impartial medical examiner for the purpose of resolving a conflict, the opinion of such specialist,
is sufficiently well rationalized and based on a prior factual and medical background, must be
given special weight.13 In a report dated October 20, 2008, Dr. Douthit opined that appellant’s
work injury permanently aggravated his degenerative disc disease. He found that the majority of
appellant’s degenerative disc disease resulted from natural aging and deconditioning.
Dr. Douthit concluded that appellant did not require any further medical treatment but would
benefit from exercise and weight loss. The Board finds that his opinion is rationalized and based
on a complete and accurate factual background; consequently, he is entitled to special weight as
the

11

While Dr. Lotman did not specifically find that appellant’s left wrist sprain resolved, he noted that appellant
had no continued complaints except for pain and loss of motion in the back.
12

Appellant’s attorney objected to the selection of Dr. Douthit, arguing that the Office had bypassed specialists
closer to his geographical location. On October 22, 2008 the Office provided the attorney with documentation
showing how it selected Dr. Douthit using the Physician’s Directory System.
13

R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); I.J., 59 ECAB ___ (Docket No. 07-2362,
issued March 11, 2008).

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impartial medical examiner.14 The Office thus met its burden of proof to terminate appellant’s
medical benefits for the accepted permanent aggravation of degenerative disc disease.
On appeal appellant contends that Dr. Douthit’s report is conflicting regarding whether
he can work eight hours per day. He asserts that he requires medication for his neck and back
pain. As noted, however, the opinion of Dr. Douthit, as the impartial medical examiner,
represents the weight of the evidence and establishes that appellant has no further need for
medical treatment for his condition of a permanent aggravation of degenerative disc disease.
LEGAL PRECEDENT -- ISSUE 2
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.15 Under section 8115(a), wage-earning capacity is determined
by the actual wages received by an employee if the earnings fairly and reasonably represent his
or her wage-earning capacity. If the actual earnings do not fairly and reasonably represent his or
her wage-earning capacity, or if the employee has no actual earnings, his or her wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors or circumstances which may affect wageearning capacity in his or her disabled condition.16
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience.17 Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick18 will result in the percentage of the employee’s loss of
wage-earning capacity.
ANALYSIS -- ISSUE 2
Appellant received compensation for total disability beginning March 30, 2000. In 2007
the Office referred him for vocational rehabilitation. In 2007 reports, Dr. Lotman, Dr. Pock and
Dr. Ryan found that appellant was no longer totally disabled from employment. The Board thus
finds that the Office properly relied upon the medical evidence in referring appellant for
14

Id.

15

T.O., 58 ECAB ___ (Docket No. 06-1458, issued February 20, 2007).

16

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

17

James A. Birt, 51 ECAB 291 (2000).

18

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

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vocational rehabilitation as he was no longer totally disabled due to residuals of his employment
injury.
Appellant’s vocational rehabilitation counselor determined that he was able to perform
the selected position of cashier. She noted that he had lifting restrictions of no more than 15
pounds on the right side only and could perform all lifting with his left upper extremity. The
rehabilitation counselor found that based on her research the position existed in sufficient
numbers within appellant’s restrictions such that it was reasonably available within his
commuting area. A review of the evidence reveals that appellant is physically capable of
performing the cashier position. The position is classified as light and requires occasional lifting
up to 20 pounds and frequent lifting up to 10 pounds. In a report dated March 28, 2007,
Dr. Lotman found that appellant could work for eight hours per day with restrictions on the right
side only of lifting, pushing and pulling over 15 pounds and sitting, and walking and standing
two hours per day intermittently. He found no lifting restrictions on the left side. On April 3,
2007 Dr. Pock found that appellant had no psychiatric condition. In a report dated November 28,
2007, Dr. Ryan asserted that appellant could only work part time in his current position as a
cashier and then gradually increase his hours to full time.19 He attributed appellant’s partial
disability to his absence from the workplace for many years and inability to exercise. Dr. Ryan
did not explain how appellant’s accepted work injury continued to cause partial disability other
than to note a lack of conditioning. The Board finds that Dr. Lotman’s opinion represents the
weight of the evidence and establishes that appellant had the capacity to perform the duties of a
cashier II for eight hours per day.
The Office considered that appellant had actual earnings as a part-time cashier. It found,
however, that his actual earnings did not fairly and reasonably represent his wage-earning
capacity as the medical evidence established that he could work full time with restrictions.
While appellant alleged that he was unable to work full time, he did not submit rationalized
medical evidence supporting his contention. In a report dated January 9, 2008, Dr. Kawasaki
discussed his history of a work injury in 2000 and subsequent falls in 2002 and 2005. He
diagnosed multilevel spondylosis with degenerative disc changes and potential nerve root
impingement. Dr. Kawasaki did not address appellant’s work restrictions or causation and thus
his opinion is of little probative value.20
The Office properly relied on the opinion of the rehabilitation counselor that appellant
was vocationally capable of performing the cashier position. In assessing the claimant’s ability
to perform the selected position, it must consider not only physical limitations but also take into
account work experience, age, mental capacity and educational background. The rehabilitation
counselor determined that appellant had the skills necessary to perform the position of cashier II
as was an unskilled position requiring only a short demonstration period of up to 30 days. She
further found that the position was reasonably available within the appropriate geographical area.
19

An Office hearing representative subsequently determined that conflict existed between Dr. Lotman and
Dr. Ryan and referred him to Dr. Douthit for an impartial medical examination. On October 20, 2008 Dr. Douthit
found that appellant could work full time with restrictions of walking and standing of two hours per day and
pushing, pulling and lifting up to 20 pounds for eight hours per day.
20

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

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As the rehabilitation counselor is an expert in the field of vocational rehabilitation, however, the
Office may rely of his or her opinion in determining whether the job is vocationally suitable and
reasonably available.21 The Board finds that the Office considered the proper factors, including
the availability of suitable employment, his physical limitations and employment qualifications
in determining that the position of cashier II represented his wage-earning capacity. The Office
further properly determined appellant’s loss of wage-earning capacity in accordance with the
formula developed in Shadrick and codified at 20 C.F.R. § 10.403.22 It, therefore, properly
found that the position of cashier II reflected his wage-earning capacity effective March 4, 2008.
On appeal appellant asserts that the Office failed to consider Dr. Sabin’s reports. In a
report dated August 14, 2008, Dr. Sabin found that appellant could work 40 hours per week with
restrictions on bending and stooping. His opinion is thus insufficient to establish that appellant
was unable to work as a cashier II.
Appellant also requested that Dr. Kawaskai be designated as his attending physician. The
Board’s jurisdiction, however, extends only to reviewing final decisions of the Office.23
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation for medical
benefits for his back strain, aggravation of osteoarthritis, neck sprain and psychogenic pain
disorder. The Board further finds that the Office properly reduced his compensation based on its
finding that he had the capacity to earn wages as a cashier II.

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(b)(2) (December 1993).
22

See supra note 18. The Office divided appellant’s employment capacity to earn wages of $300.00 a week by
his current pay rate of the position held when injured of $860.08 per week to find a 35 percent wage-earning
capacity. It multiplied the pay rate at the time disability began of $675.06 by the 35 percent wage-earning capacity
percentage. The resulting amount of $236.27 was subtracted from appellant’s date-of-disability pay rate of $675.06
which provided a loss of wage-earning capacity of $438.79 per week. The Office then multiplied this amount by the
appropriate compensation rate of three-fourths which yielded $329.09. It found that cost-of-living adjustments
increased this amount to $380.75, or $1,523.00 every four weeks.
23

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 4, November 20, June 26 and March 4, 2008 are
affirmed.
Issued: December 28, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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Appearances:
Stuart H. Deming, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1940
Issued: February 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 27, 2009 appellant, through counsel, filed a timely appeal of a June 22, 2009
decision of the Office of Workers’ Compensation Programs’ terminating his compensation for
wage-loss and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation for wageloss and medical benefits effective June 22, 2009 on the grounds that he no longer had any
residuals or disability causally related to his accepted employment-related injury.

FACTUAL HISTORY
On January 16, 1998 appellant, then a 39-year-old automotive mechanic, filed a traumatic
injury claim under File No. xxxxxx043 alleging that he injured his lower back while working on
an engine. His claim was accepted for back strain. On June 26, 2001 he alleged a new back

injury on March 29, 2001 while repairing a brake system (File No. xxxxxx048).1 The Office
accepted this claim for a lumbar herniated disc. On August 27, 2002 appellant filed an
occupational disease claim alleging a deteriorating disc condition as a result of his employment
activities, File No. xxxxxx628. The claim was accepted for an aggravation of a herniated lumbar
disc. The Office subsequently consolidated appellant’s claims under master File No. xxxxxx048.
Appellant worked light duty until September 9, 2003, when he was placed on the periodic rolls.
On November 3, 2003 Dr. Bryan Visser, an attending Board-certified physiatrist, opined
that appellant remained totally disabled due to work-related facet joint arthritis and discogenic
disease. In a November 19, 2003 report, the Office’s second opinion physician, Dr. Donald
Paarlberg, a Board-certified orthopedic surgeon, opined that he could return to work with
restrictions. The Office referred appellant to Dr. James H. Coretti, an osteopath,2 to resolve the
conflict between Dr. Visser and Dr. Paarlberg. In a referee report dated June 18, 2004,
Dr. Coretti opined that appellant was unable to perform the duties of an automotive mechanic,
but that he could work in a sedentary position with restrictions. He diagnosed developmental
deficit at L5, facet arthritis in the lower three lumbar vertebrae and disc rupture at L4-5, which
he opined were causally related to the accepted March 29, 2001 injury.
Appellant filed claims for total disability from September 8, 2003 through September 21,
2006, when he retired on disability. On December 6, 2006 the Office accepted his claim for a
recurrence of disability as of September 8, 2003 and paid compensation from September 20,
2003 through the date of his retirement on July 21, 2006.3
The Office referred appellant to Dr. Joseph E. Burkhardt, a Board-certified orthopedic
surgeon, for a second opinion evaluation and an opinion as to appellant’s work capabilities. In a
July 18, 2007 report, Dr. Burkhardt opined that appellant’s accepted conditions had resolved.
Physical examination revealed normal lumbar lordosis. On range of motion testing of the back,
flexion was 90 degrees, extension 10 degrees, side bending to the right and left was 20 degrees,
and rotation to the right and left was 20 degrees. Appellant was able to reach within 2 inches of
the floor with the knees extended. Deep tendon reflexes (patellar and Achilles) were 2/4, equal
and symmetrical bilaterally, and straight leg raising was negative, both seated and supine.
Noting that x-rays of the lumbar spine revealed facet arthrosis and degenerative disc disease,
Dr. Burkhardt found no objective evidence to support disc herniation or lumbar strain. He stated
that aggravation of the herniated disc was considered to have been temporary and had resolved.
Dr. Burkhardt opined that appellant had no residuals from his accepted conditions that precluded
his return to work as an automotive mechanic or which required restrictions or further treatment.
He indicated, however, that appellant’s degenerative disc disease would require restrictions on an
ongoing prophylactic basis against twisting, bending, stooping, squatting, kneeling, climbing,
pushing/pulling, or lifting greater than 10 pounds.
1

Appellant originally filed a notice of recurrence on June 26, 2001; however, after determining that he was
claiming that he had sustained a new injury on March 29, 2001, the Office developed the claim as a traumatic injury
claim.
2

Dr. Coretti identified himself as an osteopath; however, his credentials cannot be verified.

3

The Board notes that on May 3, 2007, appellant elected to receive benefits under the Federal Employees’
Compensation Act in lieu of federal retirement benefits.

2

The Office forwarded a copy of Dr. Burkhardt’s second opinion report to Dr. Visser for
his review. It asked him to state whether he agreed with Dr. Burkhardt’s opinion that appellant’s
accepted conditions had resolved and, if not to provide objective findings and medical reasons to
support his opinion.
On September 25, 2007 Dr. Visser stated that he had never contended that appellant had a
disc herniation causing a lumbar radiculopathy. He noted that appellant had an anular tear and
facet joint irritation, and that multiple attempts to return him to work as a mechanic had resulted
in a flare-up of his back pain. On January 28, 2008 Dr. Visser indicated that there was no new
clinical information in Dr. Burkhardt’s report. He stated, “We are not dealing with a disc
herniation causing his symptoms, but we are dealing with pain originating from a facet joint and
from compression of the neural foramen by the work activity.” Dr. Visser reiterated that
appellant was unable to return to his regular duties.4
The Office found a conflict in medical opinion between Dr. Visser and Dr. Burkhardt as
to whether appellant’s accepted conditions had resolved and whether he was able to return to his
regular duties based on his work-related condition. It referred appellant, together with a
statement of accepted facts and the entire medical record, to Dr. Emmanuel Obianwu, a Boardcertified orthopedic surgeon, to resolve the conflict.
In an October 10, 2008 report, Dr. Obianwu reviewed a complete medical and factual
history, provided findings on examination and addressed the medical record. He found that
appellant’s accepted conditions had resolved. On physical examination, appellant was able to
walk on his toes and heels without difficulty. He had 20 degrees of flexion of the thoracolumbar
spine, 10 degrees of extension, and lateral bending to either side of 5 degrees. There was
tenderness along the midline, and some tightness of the muscles of the lumbar spine. The
straight leg raising test was negative, bilaterally, both in the sitting position and in recumbency.
The extensor hallucis longus strength was adequate, bilaterally. The deep tendon reflexes were
brisk, but equal, bilaterally. There were no sensory changes in the lower extremities. The
foraminal closure test appeared to be vaguely positive. There was no atrophy of any of the
muscle groups in the lower extremities, and no irritability of the hip joints was noted. The
Patrick’s test was negative, bilaterally. Appellant ambulated without a limp. In the sitting
position, Dr. Obianwu was able to bring both of appellant’s lower extremities up so that the hips
were flexed at 90 degrees, and the knees were fully extended. He tolerated this position for some
time, casting doubt on his apparent inability to flex the thoracolumbar spine beyond 20 degrees.
Dr. Obianwu diagnosed chronic lumbar disc disease; multi degenerative disc disease,
with mild canal stenosis at the L4-5 and L5-S1 levels. He found no clinical evidence of lumbar
radiculopathy. He stated that, based on the CT myelogram from April 15, 2003 as well as his
clinical assessment, he found no evidence of a herniated disc that could be impinging on any
nerve root or vital structure. Therefore, the accepted condition of herniated disc in the lumbar
spine no longer existed and had resolved. By extension, the accepted condition of aggravation of
herniated disc had resolved. He also opined that the lumbar sprain condition had resolved.
4

The record contains an October 4, 2007 criminal investigative report wherein the sypnopsis reflects that
appellant demonstrated physical activity and ability beyond his physician’s previously stated restrictions. The
record also contains a videotape, which reportedly records appellant’s activities as described in the report.

3

Dr. Obianwu agreed with Dr. Visser’s opinion that appellant’s back pain was a result of
neuroforaminal narrowing and facet joint disease. However, noting that these conditions had not
been accepted by the Office, he stated that they were age-related, and, therefore, not attributable
to a work condition. He recommended that, because of the arthritic changes in his lumbar spine,
appellant should avoid engaging in work activities that involve lifting above 40 pounds, or
repetitive bending of the trunk.
On December 17, 2008 the Office proposed to terminate appellant’s compensation and
medical benefits. Based on Dr. Obianwu’s report, it found that appellant’s injury-related
disability had ceased and he no longer had residuals of his accepted conditions. Appellant was
afforded 30 days within which to submit any additional evidence.
On January 19, 2009 appellant’s representative informed the Office that he was unable to
provide an adequate response on behalf of appellant, given the failure of the Office to produce
records furnished to Dr. Obianwu. He contended that Dr. Burkhardt’s opinion should not have
been given any credence concerning his finding that there was no disc herniation as it was
contrary to the finding of Dr. Coretti, a previous independent medical examiner, and the
statement of accepted facts. The representative also argued that a referee examination was not
necessary because Dr. Burkhardt’s opinion was insufficient to create a conflict, as it was
conclusory in nature and not rationalized. He contended that Dr. Obianwu’s opinion was
factually inaccurate, as appellant had not taken Aleve in the past, as stated, and was never
involved with lifting a snowmobile in 2001. He also stated that Dr. Obianwu had not reviewed
Dr. Coretti’s referee report and had failed to make a finding that no residuals existed of a workrelated condition.
On January 16, 2009 Dr. Visser reiterated his opinion that appellant’s current symptoms
were secondary to his accepted injuries. He explained that a disc herniation will result in
narrowing of the disc level where the disc herniation occurs. Over time arthritic changes will
occur in the facet joints at the level of the disc herniation. An individual who has facet joint
arthritis caused by the increased motion at the level of the disc herniation, will also have an
increased risk of developing foraminal stenosis, especially with back extension. The disc
herniation also increased the chance of an individual developing discogenic pain secondarily that
allows small nerves which are normally not present in the disc to grow into the disc in order to
heal up the rent in the disc.
On January 30, 2009 appellant’s representative repeated his argument that Dr. Obianwu
did not address “the concept of residuals,” despite his findings of the neuroforaminal narrowing,
facet joint disease and canal stenosis. He contended that the referee report was deficient, as it
did not contain an opinion or explanation as to whether the herniated disc at L4-5 had any
relationship to canal stenosis at L4-5.
By decision dated June 22, 2009, the Office finalized the termination of appellant’s
compensation and medical benefits effective that date. It found that the weight of the evidence
rested with the opinion of Dr. Obianwu, the impartial medical examiner.

4

LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.5 After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.6
The Office’s 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 to compensation for disability.8 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.9
In situations where there are 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 on a proper
factual background, must be given special weight.10
ANALYSIS
The Board finds that the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective June 22, 2009.
The Office properly found a conflict in the medical opinion evidence between Dr. Visser,
appellant’s attending physician, and Dr. Burkhardt, the Office’s second opinion physician, as to
whether appellant had any continuing residuals or disability causally related to his accepted
condition. On the one hand, Dr. Visser opined that appellant had continuing employment-related
residuals and was unable to perform his regular duties. On the other hand, Dr. Burkhardt
concluded that appellant’s accepted conditions had resolved.
In order to resolve the conflict, the Office referred appellant, a statement of accepted facts
and the medical record to Dr. Obianwu for an impartial medical examination. In an October 10,
2008 report, he provided a complete medical and factual history, as well as detailed examination
findings. Dr. Obianwu found no objective evidence of residuals or disability directly attributable
to appellant’s accepted employment injury, and opined that all of his accepted conditions had
resolved. He stated that, based on the CT myelogram from April 15, 2003 as well as his clinical
5

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

6

J.M., 58 ECAB 419 (2007).

7

See Del K. Rykert, 40 ECAB 284 (1988).

8

T.P., 58 ECAB 524 (2007).

9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10

Gloria J. Godfrey, 52 ECAB 486 (2001).

5

assessment, he found no evidence of a herniated disc that could be impinging on any nerve root
or vital structure and that, therefore, the accepted condition of herniated disc in the lumbar spine
no longer existed. By extension, the accepted condition of aggravation of herniated disc had
resolved. He also opined that the lumbar sprain condition had resolved. Dr. Obianwu diagnosed
chronic lumbar disc disease, multi degenerative disc disease, with mild canal stenosis at the L4-5
and L5- SI levels, but he found no clinical evidence of lumbar radiculopathy. He agreed with
Dr. Visser’s opinion that appellant’s back pain was a result of neuroforaminal narrowing and
facet joint disease; however, noting that these conditions had not been accepted by the Office, he
stated that they were age related, and, therefore, not attributable to a work condition. The Board
finds that Dr. Obianwu’s opinion is well rationalized and based on a proper factual and medical
background.
On appeal, appellant’s representative contends that Dr. Obianwu’s report is deficient for
several reasons, namely that he relied upon an incorrect statement of accepted facts; he was not
provided with accepted definitions associated with work-related injuries; and he failed to review
Dr. Coretti’s June 18, 2004 report. The Office noted that Dr. Obianwu was provided with the
record, which included a correct statement of accepted facts, as well as accepted definitions
associated with work-related injuries. Additionally, Dr. Obianwu reviewed the medical record,
which included Dr. Coretti’s June 18, 2004 report. The issue for resolution by Dr. Obianwu was
whether appellant’s accepted conditions had resolved by the date of his examination on
October 10, 2008. The fact that his report does not contain a discussion of appellant’s condition
in June 2004 does not diminish its probative value.
Counsel also contends that the referee’s opinion was not well rationalized, noting that he
failed to explain when or why the accepted conditions had ceased, and that Dr. Obianwu’s own
medical findings, which were in part, consistent with the attending physician’s findings,
confirmed the existence of residuals related to an accepted condition. While Dr. Obianwu agreed
with Dr. Visser’s opinion that appellant’s back pain was a result of neuroforaminal narrowing
and facet joint disease, he found that these conditions were age related, and, therefore, not a
consequence of the accepted injuries. The Board finds that Dr. Obianwu’s report is well
rationalized and represents the weight of the medical evidence. Although Dr. Visser opined on
January 16, 2009 that appellant’s current symptoms were secondary to his accepted injuries, his
report is insufficient to overcome the weight given to the opinion of the impartial medical
examiner.
Appellant’s representative raised other issues on appeal, including the Office’s alleged
failure to produce a videotape related to an October 4, 2007 criminal investigative report to the
representative or appellant; the improper consideration of the report of the second opinion
physician, because he was not provided with the entire case file; and the employing
establishment’s act of telephoning appellant’s treating physician. Neither the fact that the
employing establishment telephoned the treating physician, nor the Office’s failure to provide a
videotape, are relevant to the medical issues at hand, namely, whether appellant has residuals or
disability related to his accepted conditions. Further, the Office is not required to provide a
second opinion physician with the entire case file.
Dr. Obianwu’s well-rationalized report constitutes the special weight of the medical
opinion evidence afforded an impartial medical specialist and establishes that appellant no longer

6

has residuals from, and is not disabled due to, his accepted conditions. The Board, therefore,
finds that the Office met its burden of proof to terminate appellant’s compensation and medical
benefits effective June 22, 2009.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss and medical
benefits, effective June 22, 2009, on the grounds that he had no residuals or disability related to
his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Easton, MD, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 17-1876
Issued: January 24, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 5, 2017 appellant filed a timely appeal from an April 12, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the most recent merit decision dated February 7, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing
before an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. As the Board’s jurisdiction is limited to evidence that was before
OWCP at the time of its final decision, the Board is precluded from reviewing this evidence for the first time on
appeal. 20 C.F.R. § 501.2(c)(1). J.W., Docket No. 17-1366 (issued October 26, 2017).

FACTUAL HISTORY
On December 10, 2014 appellant, then a 52-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 6, 2014 she was involved in a work-related motor
vehicle incident which resulted in abrasions, a broken rib, and a black eye. Appellant stopped
work on December 6, 2014.
By decision dated February 2, 2015, OWCP accepted appellant’s claim for lumbar sprain,
contusions of the right elbow and forearm, contusions of the right chest wall, and a right black
eye. Medical benefits were authorized and appellant received wage-loss compensation on the
supplemental rolls as of January 21, 2015. On October 8, 2015 OWCP accepted a claim for
recurrence of disability (Form CA-2a) effective September 8, 2015. By decision dated May 20,
2016, it accepted additional conditions of wedge compression fracture of the thoracic vertebra
and flail chest. Appellant received wage-loss compensation on the periodic rolls as of
July 24, 2016.
Following the establishment of a conflict in medical opinion as to appellant’s disability
status, in an impartial medical evaluation report dated September 30, 2016, Dr. Mohammed H.
Zamani, a Board-certified orthopedic surgeon, opined that appellant was capable of working
without restrictions and that no further medical treatment was necessary.
On October 19, 2016 OWCP proposed to terminate appellant’s entitlement to wage-loss
compensation and medical benefits. It found that the special weight of medical evidence rested
with Dr. Zamani. On February 7, 2017 OWCP finalized its termination of and wage-loss
compensation and medical benefits effective March 5, 2017.
By form dated March 20, 2017, appellant requested an oral hearing before an OWCP
hearing representative. The envelope containing the form was postmarked March 22, 2017 and
was received by OWCP on March 27, 2017.
By decision dated April 12, 2017, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request as untimely filed. OWCP’s hearing representative noted that OWCP
had issued its decision on February 7, 2017, while appellant’s hearing request was postmarked
March 22, 2017, more than 30 days after OWCP’s decision. She found that appellant was not
entitled to a hearing as a matter of right, as the request was submitted more than 30 days after
OWCP’s decision. The hearing representative also considered whether to grant appellant a
discretionary hearing, but determined that the issue in this case could equally well be addressed
by a request for reconsideration before OWCP.
LEGAL PRECEDENT
A claimant may obtain a hearing from a final adverse OWCP decision by writing to the
address specified in the decision.3 The hearing request must be sent within 30 days (as
determined by postmark or other carrier’s date marking) of the date of the decision for which a
hearing is sought. The claimant must not have previously submitted a reconsideration request
3

20 C.F.R. § 10.616(a).

2

(whether or not it was granted) on the same decision. If the request is not made within 30 days, a
claimant is not entitled to a hearing as a matter of right. However, the Branch of Hearings and
Review, in exercise of its discretion, may either grant or deny a hearing.4 Its procedures require
that it exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration under section 8128(a).5
ANALYSIS
The issue on appeal is solely whether appellant was entitled, as a matter of right, to an
oral hearing before an OWCP hearing representative, or whether OWCP’s Branch of Hearings
and Review abused its discretionary authority in denying appellant’s request for a hearing.
OWCP issued its last decision on February 7, 2017. The regulations provide that “[t]he
hearing request must be sent within 30 days […] of the date of the decision for which a hearing
is sought.” Because appellant’s request postmarked March 22, 2017 was untimely and she was
not entitled to a review of the written record as a matter of right.
Although appellant’s request for hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion.6 OWCP’s hearing
representative exercised her discretion, but denied appellant’s hearing request because she found
that the issue of termination could be equally well addressed by a request for reconsideration
before OWCP. The Board finds that the hearing representative properly exercised her
discretionary authority in denying appellant’s request for a hearing.7 The only limitation on
OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts.8 In this case, the evidence
of record does not establish that OWCP abused its discretion in denying appellant’s request for a
hearing. Accordingly, the Board finds that OWCP properly denied appellant’s hearing request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing
before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124.

4
5 U.S.C. §§ 8124(b) (1) and 8128(a); Hubert Jones Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).
5

See R.T., Docket No. 08-0408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -Claims, Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
6

R.V., Docket No. 17-1286 (issued December 5, 2017).

7

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002).
8

Samuel R. Johnson, 51 ECAB 612 (2000).

3

ORDER
IT IS HEREBY ORDERED THAT the April 12, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Memphis, TN, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-948
Issued: January 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 7, 2011 appellant, through her attorney, filed a timely appeal from a
February 4, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying
her claim for a schedule award. 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish permanent
impairment causally related to a May 14, 2002 employment injury, thereby entitling her to a
schedule award.
On appeal appellant, through her attorney, contends that OWCP’s decision is contrary to
fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 14, 2002 appellant, then a 45-year-old medical clerk, filed a traumatic injury
claim alleging that on that date she pulled a muscle in her neck while lifting medical records. On
July 3, 2002 OWCP accepted her claim for cervicalgia. On April 14, 2003 it accepted
appellant’s claim for a recurrence.
The medical records note a history of prior problems with pain in appellant’s neck. In a
statement dated April 23, 2004, appellant indicated that her original date of injury was
September 24, 1999 when she was injured at work when she fell to the floor.2 In a January 17,
2003 report, Dr. Carlos E. Rivera-Tavarez, a Board-certified physiatrist with Board-certified
subspecialities in pain medicine and sports medicine, noted that she has had pain in the neck to
the shoulders, upper extremities and down the spine and low back associated with headaches.
Appellant’s symptoms had been ongoing since 1999 when she sustained a fall while walking. In
an May 23, 2003 report, Dr. Rivera-Taverez compared a magnetic resonance imaging (MRI)
scan of her cervical spine obtained on July 13, 2001 with that of June 10, 2002. The studies were
similar with mild degenerative disc disease and spondylosis at C4-5 and a left paracentral disc
protrusion at C5-6. Dr. Rivera-Taverez listed his impressions as chronic pain, probable
myofascial pain, cervical spondylosis, probable joint pain, lumbar spondylosis and cervicogenic
headaches. He did not provide any rating of impairment.
In a report dated August 28, 2006, Dr. John D. Brophy, a Board-certified neurosurgeon,
obtained a history that in September 1999, after a fall at work, appellant developed neck pain.
An MRI scan in July 2001 demonstrated spondylosis at C5 and C5-6 with a disc bulge on the left
at C5-6. In the fall of 2005 appellant developed increasing neck and bilateral upper extremity
paresthesias extending to the fingers. Dr. Brophy diagnosed chronic neck pain and upper
extremity paresthesias associated with left C6-7 herniated nucleus pulposus without definite
clinical evidence of myelopathy and possible mild left C6 cervical radiculopathy. He did not
address impairment.
On October 3, 2006 appellant underwent a C5-6 cervical fusion with iliac crest bone
graft.
In a June 29, 2009 report, Dr. F. Gregory Wolf, a Board-certified orthopedic surgeon,
reviewed the C5-6 anterior cervical discectomy and fusion on October 3, 2006 and advised that
appellant had permanent impairment as a result of the surgery. Pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001),
appellant had a 25 percent impairment of the whole person under Table 15-5 due to her cervical
condition.
On October 14, 2009 appellant filed a claim for a schedule award.
By decision dated December 9, 2009, OWCP denied appellant’s claim for a schedule
award. It determined that the medical evidence of record did not support any permanent
impairment to the upper extremities based on the accepted cervical condition.
2

OWCP accepted cervical strain and assigned OWCP File No. xxxxxx955.

2

On December 14, 2009 appellant requested an oral hearing before an OWCP hearing
representative. At the March 25, 2010 hearing, OWCP’s hearing representative stated that the
record would be open for 30 days for the submission of additional medical evidence. No new
medical reports were submitted by appellant.
By decision dated June 9, 2010, OWCP’s hearing representative denied a schedule award
due to the lack of any medical evidence establishing that appellant sustained permanent
impairment as a result of the May 14, 2002 work injury.
On December 21, 2010 appellant requested reconsideration. In a May 24, 2010 report,
Dr. Martin Fritzhand, a specialist in occupational health, reviewed her history and that she
underwent a C5-6 anterior cervical discectomy with interbody fusion in 2006. He utilized the
A.M.A., Guides (5th ed.) to rate spinal nerve root impairment. Dr. Fritzhand concluded that
appellant had a permanent impairment to each upper extremity of six percent. He noted that
Table 16-13 of the A.M.A., Guides allowed a maximum percent upper extremity impairment due
to sensory deficit for the C6 nerve root of eight percent. Table 16-10 provided a 75 percent
sensory deficit for grade 2/5. Dr. Fritzhand found that appellant could not perform certain
activities due to pain and numbness involving the upper extremities and had a 6 percent
impairment to each upper extremity (75 percent times 8 percent).
By decision dated February 4, 2011, OWCP denied modification of the June 9, 2010
decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim, including that she sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which
schedule award compensation is alleged.3
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4

3

See S.S., Docket No. 10-1536 (issued March 18, 2011) (The Board found that appellant was not entitled to a
schedule award as she did not establish that she sustained a permanent impairment causally related to her work
injury); Bobbie F. Cowart, 55 ECAB 476 (2004) (The Board determined that appellant did not establish that an
employment-related condition contributed to her hearing loss and, therefore, it denied her claim for entitlement to a
schedule award for her left ear).
4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

3

The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. The A.M.A., Guides has
been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses.7 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.8
ANALYSIS
OWCP accepted that, as a result of a May 14, 2002 employment injury, appellant
sustained cervicalgia. Dr. Rivera-Tavarez reviewed her MRI scans obtained on July 13, 2001
and June 10, 2002 and found the results similar, with mild degenerative disc disease and
spondylosis at C4-5 and left paracentral disc protrusion at C5-6. However, as these tests were
diagnostic in nature, Dr. Rivera-Tavarez did not provide a discussion of permanent impairment.
Dr. Brophy noted that, after the September 24, 1999 employment injury, appellant
developed neck pain. He diagnosed her with chronic neck pain and upper extremity paresthesias
associated with a left C6-7 herniated disc and possible mild left C6 cervical radiculopathy.
Appellant’s surgery on October 3, 2006, a C5-6 cervical fusion, was not accepted by OWCP as
causally related to her May 14, 2002 employment injury.
Dr. Wolf determined that appellant had a 25 percent impairment of the whole person, but
never explained how the impairment related to the May 14, 2002 employment injury. Rather, he
related the impairment to her October 3, 2006 surgery which was not accepted as related to the
May 14, 2002 employment injury. Moreover, Dr. Fritzhand addressed permanent impairment in
terms of a whole person rating of the cervical spine. It is well established that FECA does not
provide for payment of a schedule award for loss of use of the back or spine.9
There is no evidence that appellant sustained permanent impairment as a result of the
accepted cervicalgia condition that was related to her May 14, 2002 injury. Appellant did not
establish work-related permanent impairment and OWCP properly denied her schedule award
claim.
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(a)
and 20 C.F.R. §§ 10.605 through 10.607.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

See Patricia J. Horney, 56 ECAB 256 (2005).

4

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish entitlement
to schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 26, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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Appearances:
Stephen V. Barszcz, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0220
Issued: August 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 7, 2018 appellant, through counsel, filed a timely appeal from July 17 and
September 19, 2018 merit decisions 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 September 19, 2018 decision, OWCP received additional evidence. 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.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective July 18, 2018, as she no longer had
residuals or disability causally related to her accepted employment injury; and (2) whether
appellant has met her burden of proof to establish continuing disability after July 18, 2018.
FACTUAL HISTORY
On July 13, 2015 appellant, then a 36-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that, on that day, she injured her back when assisting a patient while in the
performance of duty. She stopped work on July 17, 2015. Appellant returned to work on July 29,
2015 for four hours a day in a sedentary position with restrictions. OWCP accepted the claim for
lumbar spine ligament sprain and paid her wage-loss compensation on the supplemental rolls for
the period August 31, 2015 through August 26, 2016.
Under OWCP File No. xxxxxx081, appellant has an accepted claim for lumbar and thoracic
sprains as a result of a July 25, 2011 traumatic injury. The prior claim remains open for authorized
medical care.4
In an April 15, 2016 report, Dr. Daniel Pennello, a Board-certified orthopedic surgeon,
indicated that appellant had an essentially normal lumbar spine examination, with full range of
motion, strength, and reflexes with no signs of myelopathy. He provided an impression of lumbago
with right-sided sciatica, ligament lumbar spine sprain, and lumbar strain with symptoms of
periodic right radiculopathy. Dr. Pennello kept appellant on light duty and recommended referral
to a spine specialist.
On July 5, 2016 OWCP referred appellant to Dr. William Dinenberg, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the status of her accepted
conditions.
In an August 3, 2016 report, Dr. Dinenberg discussed appellant’s history of injury,
reviewed the statement of accepted facts (SOAF) and medical records, and provided his
examination findings. He noted diminished sensation of her right lower extremity and a positive
straight leg raise. Dr. Dinenberg provided an impression of lumbar sprain/strain with right lower
extremity and mild degenerative disc disease of the lumbar spine. He noted that appellant had
failed conservative treatment and that it was unclear why she had persistent symptoms of a lumbar
sprain. Dr. Dinenberg recommended an epidural injection, with a projected improvement within
six weeks of the injection. He opined that appellant could not perform her date-of-injury position
due to the residuals of the employment injury, indicated that she had not reached maximum
medical improvement, and noted that she was capable of working eight hours a day with
restrictions. A July 29, 2016 work capacity evaluation (Form OWCP -5c) noted restrictions of:
pushing, pulling, and lifting for three hours, no more than 10 pounds; squatting, kneeling, and
climbing for one hour; and twisting, bending, and stooping for one hour.

4

The current claim under OWCP File No. xxxxxx100 has been consolidated with OWCP File No. xxxxxx081,
which serves as the master file.

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On August 29, 2016 the employing establishment advised appellant that, based on the
restrictions of the Dr. Dinenberg, a temporary light-duty full-time position was available effective
September 6, 2016. Appellant declined the position on September 1, 2016 noting that her
physician had not released her to full duty.
In a February 7, 2017 report, Dr. Robert R. Reppy, an osteopath and family medical
specialist, indicated that the July 13, 2015 employment injury aggravated appellant’s 2011
employment injury, which remained open. He noted that appellant’s symptoms persisted and that
additional workup was needed.
On February 9, 2017 OWCP advised the employing establishment that Dr. Dinenberg’s
opinion constituted the weight of the medical evidence regarding appellant’s restrictions related to
the July 13, 2015 employment injury.
OWCP received a February 23, 2017 functional capacity evaluation, conducted by
Dr. Reppy. It also received various diagnostic tests, including a March 8, 2017 electromyogram,
the report of which noted tests findings, but did indicate a final impression. In March 15 and 30,
and April 12, 2017 reports, Dr. Reppy diagnosed lumbar disc displacement with radiculopathy. In
a March 30, 2017 duty status report (Form CA-17) he opined that appellant could work no more
than four hours per day with restrictions of lifting no more than 20 pounds and walking no more
than five minutes.
On April 5, 2017 OWCP issued a notice of proposed reduction. It advised appellant that
wage-loss compensation could not be paid if appropriate light duty was available. OWCP found
that the temporary full-time light-duty assignment was within the work restrictions provided by
Dr. Dinenberg. It noted that while Dr. Reppy indicated that appellant was only capable of working
four hours a day with restrictions, he had not provided sufficient medical rationale regarding his
opinion. OWCP also informed her of the provisions of 20 C.F.R. § 10.500(a) and further advised
that appellant’s entitlement to wage-loss compensation would be reduced under this provision if
she did not accept the offered temporary assignment or provide a written explanation with
justification for her refusal within 30 days.
In an April 19, 2017 report, Dr. Reppy indicated that appellant had lumbar disc
displacement, confirmed by an August 24, 2015 magnetic resonance imaging (MRI) scan. He
maintained that because of her back injury and its effects, she could not work eight hours per day.
By decision dated May 16, 2017, OWCP terminated appellant’s wage-loss compensation
benefits effective August 29, 2016 pursuant to 20 C.F.R. § 10.500(a) as she failed to accept the
August 29, 2016 temporary light-duty assignment. The weight of the medical evidence was
accorded to Dr. Dinenberg’s opinion that appellant was capable of working eight hours per day
with restrictions.
Dr. Reppy continued to opine that appellant could work no more than four hours per day
with restrictions. OWCP also continued to receive diagnostic test reports. On June 2, 2017 the
employing establishment noted that appellant had been attending school to obtain her Advanced
Registered Nurse Practitioner (ARNP) license while working four hours per day.

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On June 5, 2017 appellant requested a review of the written record before an OWCP
hearing representative. Treatment notes from Dr. Reppy indicated that appellant could work no
more than four hours per day with restrictions.
By decision dated September 1, 2017, an OWCP hearing representative set aside the
May 16, 2017 termination decision finding that there was an unresolved conflict of medical
opinion between Dr. Dinenberg and Dr. Reppy as to how many hours per day appellant could
work, which required referral to an impartial medical examiner (IME). On remand, OWCP was
instructed to combine the instant case with File No. xxxxxx081 and to amend the SOAF to include
information on both claims including that appellant had attended school from 2015 to 2017.
To resolve the conflict, OWCP referred appellant to Dr. Robert W. Elkins, a Boardcertified orthopedic surgeon, for an impartial medical examination.
Dr. Elkins submitted a report dated December 12, 2017 in which he noted his review of the
medical records and that appellant was working four hours a day in a fairly sedentary job. He
diagnosed chronic low back strain and opined that she had mild residuals from her employment
injury. Dr. Elkins reported a negative neurologic examination and found no evidence of symptom
magnification or pain accentuation. He indicated that there was no recent MRI scan of record and
that the prior MRI scan was fairly unremarkable. Dr. Elkins opined that a “compromise was in
order” and that appellant could work six hours a day. He further opined that although she can
work six hours per day she needed an updated MRI scan to determine whether additional
restrictions, including lifting restrictions, were feasible.
On January 26, 2018 OWCP requested that Dr. Elkins clarify his report. It requested that
he review the SOAF and the complete medical record and that he revisit his assessment of residuals
related to the accepted condition of lumbar strain and whether the condition remained active and
caused objective symptoms.
In a February 26, 2018 addendum report, Dr. Elkins noted his review of the SOAF. He
indicated that appellant had “subjective complaints, but a negative neurological examination, prior
low back strain with possible radiculopathy.” Dr. Elkins noted that she had intermittent symptoms
and that such symptoms were aggravated by activity. He opined, based solely on the accepted
lumbar strain diagnosis, that there were no residuals of the work injury as the muscular and
ligamentous strains should have resolved. Dr. Elkins also opined that appellant had no work
restrictions.
Dr. Reppy continued to submit treatment notes diagnosing lumbar disc displacement with
radiculopathy to the lower extremities. In a May 3, 2018 duty status report (Form CA-17) he
indicated that appellant could work four hours per day for three days per week.
On May 7, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits as Dr. Elkin’s reports of December 12, 2017 and February 26, 2018 indicated that
she had no residuals of the July 13, 2015 employment-related injury. It afforded her 30 days to
submit additional evidence or argument, if she disagreed with the proposed termination.
Dr. Reppy continued to submit treatment notes and indicate that appellant could only work
four hours per day for three days per week.

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By decision dated July 17, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective July 18, 2018, as she had no residuals or disability due to her
accepted employment injury. It accorded the reports from Dr. Elkins the special weight of the
medical evidence.
On August 9, 2018 appellant, through counsel, requested reconsideration. He argued that
Dr. Elkin’s reports should not be accorded the special weight of the medical evidence.
Dr. Reppy continued to diagnose lumbar disc displacement with radiculopathy to the lower
extremities. He also opined that appellant could only work four hours per day for three days per
week.
By decision dated September 19, 2018, OWCP denied modification of its July 17, 2018
termination decision. It found that the reports from Dr. Elkins, as the IME, constituted the special
weight of the medical evidence.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of compensation 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 has residuals of an employment-related condition, which would
require further medical treatment.9
Section 8123(a) of FECA 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 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,

5

M.M., Docket No. 17-1264 (issued December 3, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.R., Docket No. 19-0173 (issued May 2, 2019); E.B., Docket No. 18-1060 (issued November 1, 2018).

7

G.H., Docket No. 18-0414 (issued November 14, 2018).

8

L.W., Docket No. 18-1372 (issued February 27, 2019).

9

R.P., Docket No. 18-0900 (issued February 5, 2019).

10

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019).

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if sufficiently well rationalized and based upon a proper factual background, must be given special
weight.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective July 18, 2018, as she no longer had residuals or
disability causally related to her accepted employment injury.
OWCP properly found a conflict existed between Dr. Reppy, appellant’s treating
physician, and Dr. Dinenberg, an OWCP referral physician, regarding whether she had the ability
to work eight hours a day. At the time of the referral, no conflict existed with regard to continued
residuals of her employment injury, which was accepted for sprain of ligaments of lumbar spine.
OWCP referred appellant to Dr. Elkins, a Board-certified orthopedic surgeon, for an impartial
medical examination, pursuant to 5 U.S.C. § 8123(a).
In a report dated December 12, 2017, Dr. Elkins diagnosed a chronic low back strain and
indicated that she had unexplained numbness down her thigh, as well as pain. He opined that she
was able to work six hours a day and that she had mild residuals of the July 13, 2015 accepted
employment injury. Dr. Elkins indicated that a new MRI scan was needed to relate the numbness
and the minor pain to a disc and to see whether any additional restrictions were needed relative to
the August 29, 2016 modified job offer. In his February 26, 2018 addendum report, Dr. Elkins
changed in his opinion, without the aid of the requested MRI scan or other new medical
documentation, and opined that appellant had no residuals from the July 13, 2015 employment
injury, that she could work full duty with no restrictions, and required no additional medical
treatment.
The Board finds that Dr. Elkins February 26, 2018 addendum opinion is conclusory in
nature. Dr. Elkins provided insufficient medical rationale for his conclusion that appellant no
longer had residuals of the July 13, 2015 employment injury, that she could work full duty with
no restrictions, and that she required no additional medical treatment. In determining the probative
value of an IME’s report, the Board considers such factors as the opportunity for and thoroughness
of examination performed by the physician, the accuracy and completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested, and the medical
rationale expressed by the physician on the issues addressed to him by OWCP.12 Dr. Elkins failed
to explain why the objective findings of record established that the accepted lumbar strain had
resolved. He opined that there were no residuals from the current diagnosis of lumbar strain as the
accepted lumbar strain should have resolved as it was muscular and ligamentous. Furthermore,
Dr. Elkins provided no explanation as to why a new MRI scan was no longer needed to determine
appellant’s restrictions and the source of her intermittent symptoms. Given his report two months
prior, his conclusion that she no longer had residuals and did not require work restrictions is
conclusory at best. When an IME fails to provide medical reasoning to support his or her

11

D.W., Docket No. 18-0123 (issued October 4, 2018).

12

See D.W., id.; James T. Johnson, 39 ECAB 1252 (1988).

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conclusory statements about a claimant’s condition, it is insufficient to resolve a conflict in the
medical evidence.13
Because Dr. Elkin’s addendum report lacks probative value and contradicts his original
report in which he requested a new MRI scan, the Board finds that OWCP erred in relying on his
opinion as the basis to terminate appellant’s wage-loss compensation and medical benefits for the
accepted lumbar strain. He provided conclusions without sufficient medical rationale to support
his findings. The Board therefore reverses the termination of wage-loss compensation and medical
benefits as OWCP has not met its burden of proof.14
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective July 18, 2018.15
ORDER
IT IS HEREBY ORDERED THAT the September 19 and July 17, 2018 decisions of the
Office of Workers’ Compensation Programs are reversed.
Issued: August 1, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
13

See D.W., supra note 11; A.R., Docket No. 12-0443 (issued October 9, 2012); see also P.F., Docket No. 13-0728
(issued September 9, 2014); T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report consisting solely
of conclusory statements without supporting rationale is of little probative value).
14

See D.W., supra note 11; Willa M. Frazier, 55 ECAB 379 (2004).

15

In light of the disposition of this case, counsel’s arguments on appeal and the second issue regarding continuing
residuals will not be addressed.

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