United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Little Rock, AR, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0851
Issued: December 11, 2018

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 March 13, 2018 appellant, through counsel, filed a timely appeal from a December 15,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective August 21, 2016; and (2) whether appellant has
established continuing disability or residuals due to her accepted emotional condition on and after
August 21, 2016.
FACTUAL HISTORY
On August 29, 2014 appellant, then a 52-year-old critical care nurse, filed an occupational
disease claim (Form CA-2) alleging that on or before December 5, 2013, encounters with violent
patients, a series of patient deaths, and overwork due to staffing shortages caused post-traumatic
stress disorder (PTSD), anxiety, depression, insomnia, and migraine headaches. In an associated
statement, she described numerous incidents of patients who died while in pain when families
refused to allow palliative care. Appellant also noted that she cared for patients who were violent,
sexually inappropriate, and inebriated. She alleged that her unit was chronically short staffed and
that management had engaged in a pattern of discrimination and harassment against her and other
senior nurses.
In a statement of accepted facts (SOAF) dated May 8, 2015, OWCP related that appellant
had established that her position involved the care and treatment of critically ill patients, some of
whom die during the course of treatment and that her position involved care and treatment of
patients with psychiatric disorders, addiction-related problems or a combination of both.
Appellant had been the subject of verbal threats and physical violence from some of these patients.
OWCP also noted that she did not stop work.
After initial development, on May 11, 2015 OWCP accepted the claim for PTSD,
adjustment disorder with anxiety, and major depression, single episode, moderate. It paid
appellant wage-loss compensation for intermittent dates from March 7 to September 11, 2015.
OWCP paid compensation on the periodic rolls commencing September 20, 2015.
Dr. D. Kenneth Counts, an attending licensed clinical psychologist, provided periodic
reports from June 25, 2015 to February 3, 2016 finding that appellant remained totally disabled
and should be off work through September 2016 due to continuing symptoms of PTSD and major
depression. He explained that appellant’s diagnosed conditions were related to her employment,
which involved treating dying and combative patients. Appellant had nightmares, intrusive
thoughts, memory problems, psychomotor retardation, depressed thought content, passive suicidal
ideation, an exaggerated startle response, and outbursts of anger.
On April 5, 2016 OWCP obtained a second opinion on the nature and extent of appellant’s
continuing condition from Dr. Bradley C. Diner, a Board-certified psychiatrist. Dr. Diner
summarized the medical record and the May 8, 2015 SOAF provided for his review. He noted
that appellant had been off from work since May 2015 when OWCP “accepted her requested
family medical leave” and that OWCP had not accepted her allegations of harassment. Dr. Diner
noted that, although appellant had not previously been examined by a psychiatrist, she reported
that her gynecologist prescribed Prozac in 2008 for “stress” at approximately the same time she
was diagnosed with ovarian cancer. A primary care physician, increased appellant’s dose of
Prozac in December 2013 due to “stress and anxiety at work.” Appellant also admitted to
2

increasing alcohol use. Dr. Diner found appellant “alert and well oriented” based on cognitive
testing. Appellant was “preoccupied with her feelings of helplessness, hopelessness, and low selfesteem, as well as her past occupational difficulties. She perceived herself as the victim of a
persecutory environment and herself as helpless to manage her environment.” Dr. Diner diagnosed
severe, recurrent major depression, adjustment disorder with depressed and anxious mood, and a
severe alcohol use disorder. He noted appellant’s depressive symptoms began shortly after she
developed ovarian cancer in 2008 and underwent a hysterectomy. Dr. Diner opined that the
diagnosed depression was “not the direct result of the care and treatment of critically ill patients.
Rather, as appellant became more depressed, her ability to manage her job and her patients became
overwhelming and she perceived herself as unable to do the job she had always held herself to do.”
She then blamed her depression on her job as an “outside extenuating cause to understand
depressive symptoms.” Dr. Diner noted that it was “possible that her diagnosis with cancer in
2008 was the initial negative event which precipitated some of her depressive symptoms.” He
found that appellant remained disabled for work and required additional psychiatric treatment and
medication.
On July 15, 2016 OWCP notified appellant of its proposed termination of her wage-loss
compensation and medical benefits based on Dr. Diner’s opinion. It found that Dr. Counts “was
not a physician of the appropriate specialty” as he was not licensed to prescribe medication,
whereas Dr. Diner was a Board-certified psychiatrist. OWCP afforded appellant 30 days to submit
additional evidence or argument.
In response, appellant provided her July 25, 2016 statement contending that she had been
placed on Prozac in 2006 due to depression caused by work stress, approximately two years prior
to her ovarian cancer diagnosis. She attributed her condition to her patients dying “at times in
great agony” and consoling their families during the end of life events.
Counsel submitted an August 12, 2016 letter contending that Dr. Diner’s report was
speculative and based on a misunderstanding of the SOAF. He referred to appellant using FMLA
leave, but did not acknowledge that OWCP had accepted her claim and paid her wage-loss
compensation. Additionally, Dr. Diner speculated that appellant’s ovarian cancer was the probable
origin of her depression, but did not provide decisive medical rationale negating the accepted work
factors as a contributing cause of her ongoing emotional condition. Alternatively, counsel asserted
that there was a conflict of medical opinion between Dr. Counts and Dr. Diner which required
resolution by an impartial medical specialist. She submitted additional medical evidence.
In reports dated May 11, 2016, Dr. Counts found that appellant remained totally disabled
from work due to PTSD, major depressive disorder, and adjustment disorder with anxiety. In a
report dated August 5, 2016, he opined that appellant’s well-documented work stressors triggered
PTSD and major depressive disorder. Appellant did not “require mental health services prior to
her experiences at her place of employment,” but presently required extensive mental health care
and medication.
By decision dated August 18, 2016, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective August 21, 2016, finding that the medical evidence
of record established that appellant’s accepted emotional condition had ceased without residuals.
It accorded Dr. Diner’s opinion the weight of the medical evidence.

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On September 23, 2016 appellant, through counsel, requested reconsideration. She
contended that new medical evidence from Dr. Joe F. Bradley, an attending Board-certified
psychiatrist, was sufficient to create a conflict with Dr. Diner’s opinion.
In a report dated September 8, 2016, Dr. Bradley contended that Dr. Diner “did not
adequately explore or document” appellant’s PTSD as documented by her treating physicians. He
explained that appellant had PTSD that fully met the diagnostic criteria as set forth in the DSM-5
[Diagnostic and Statistical Manual -- 5th Edition],” including nightmares, intrusive thoughts,
avoidance of triggers, diminished interest, symptoms of detachment, irritability, insomnia,
difficulty concentrating, hypervigilance, and an exaggerated startle response. Dr. Bradley opined
that appellant’s work with “dying and combative patients” was the direct cause of her PTSD, major
depression, and adjustment disorder with anxiety. It was “clear that performing the job duties of
a critical care nurse over the course of time has severely affected [appellant’s] psychologic
functioning” and had caused PTSD. Dr. Bradley opined that while these circumstances “may not
account for 100 percent of [appellant’s] current symptomatology,” “being exposed to the critically
ill and caring for them over time” was the direct cause of her current diagnoses. He found appellant
totally disabled from work.
By decision dated December 15, 2016, OWCP denied modification, finding that the
additional evidence submitted was insufficient to outweigh Dr. Diner’s opinion or to cast doubt on
its propriety. It found that Dr. Bradley did not differentiate between the role of the accepted and
nonaccepted work factors in causing the diagnosed psychiatric conditions, whereas Dr. Diner
mentioned that OWCP had not accepted appellant’s allegations of harassment as factual.
On October 24, 2017 appellant, through counsel, requested reconsideration. She
contended that an enclosed Equal Employment Opportunity Commission (EEOC) bench opinion
established appellant’s allegations of managerial harassment as factual. Counsel also asserted that
a new medical report from Dr. Counts was sufficient to establish causal relationship.
Counsel provided a copy of a May 31, 2017 EEOC bench opinion entering a judgment in
appellant’s favor regarding her complaint of harassment and discrimination. The judge awarded
appellant back pay to be calculated by the employing establishment, and medical expenses not
covered by OWCP.
In a report dated October 11, 2017, Dr. Counts noted that appellant’s results on PCL-V
(PTSD Checklist) and MMPI-II (Minnesota Multiphasic Personality Inventory, version two)
testing met or exceeded the DSM-V criteria for PTSD. He opined that appellant’s conditions were
contributed to by working with dying and combative patients. Dr. Counts also attributed the
diagnosed PTSD, major depressive order, and adjustment disorder with anxiety to overwork and
managerial harassment.
By decision dated December 15, 2017, OWCP denied modification, finding that
Dr. Diner’s opinion remained controlling, as it was thorough and based on all relevant evidence.
It found that Dr. Counts’ October 11, 2017 report was insufficient to create conflict of opinion
with the well-reasoned opinion of Dr. Diner. OWCP further found that the EEOC findings
concerned the administrative matters of leave use, scheduling, training, and disciplinary matters
which were not considered to be in the performance of appellant’s regular or specially assigned
duties.
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LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.4
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits.
OWCP terminated appellant’s wage-loss compensation and medical benefits effective
August 21, 2016, based on the opinion of Dr. Diner, a Board-certified psychiatrist acting as second
opinion physician, who found that the accepted PTSD and adjustment disorder had ceased without
residuals, and that the accepted major depression was not occupationally related. However, the
Board finds that Dr. Diner’s report was not entitled to the weight of the medical evidence.
In his April 5, 2016 report, Dr. Diner reviewed the medical evidence of record and a SOAF
dated May 8, 2015. The Board notes that the SOAF was issued before OWCP accepted appellant’s
claim and omits the crucial information that OWCP accepted the claim and the specific conditions
accepted. Dr. Diner thus based his opinion on an incomplete factual and medical history. OWCP
procedures provide that when a referral physician renders a medical opinion based on a SOAF
which is incomplete or inaccurate, the probative value of the opinion is diminished.8
Because Dr. Diner was not forwarded an up-to-date SOAF with the specific conditions
accepted, the Board finds that OWCP erred in relying on his opinion as the basis to terminate
monetary compensation and medical benefits for the accepted conditions. His conclusions were

3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

8
Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990). R.P., Docket No. 17-1133 (issued January 18, 2018).

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not based on an accurate factual history. Dr. Diner’s report is therefore insufficient for OWCP to
meet its burden of proof to terminate appellant’s wage-loss compensation and medical benefits.9
Accordingly, the Board finds that OWCP improperly terminated appellant’s wage-loss
compensation and medical benefits effective August 21, 2016.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective August 21, 2016.10
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated December 15, 2017 is reversed.
Issued: December 11, 2018
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

9

R.P., id.

10

In light of the Board’s disposition of the first issue, the second issue is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Amarillo, TX, Employer
__________________________________________

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Appearances:
Lonnie Boylan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1682
Issued: December 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 29, 2014 appellant, through counsel, filed a timely appeal from a June 6, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective November 17, 2013 as she no longer had any
residuals or disability causally related to her accepted employment-related injury; and
(2) whether she had any continuing employment-related residuals or disability after
November 17, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 24, 1993 appellant, then a 39-year-old letter carrier, filed a traumatic injury
claim (Form CA-1). She alleged that on that day she sprained both knees and her left ankle
when she stepped in a deep hole and fell while delivering mail. OWCP accepted appellant’s
claim for bilateral knee sprain and expanded the claim to include sprain of neck, derangement of
left ankle, and left plantar fibromatosis. Appellant was paid compensation benefits and OWCP
authorized a modified Elmslie reconstruction of her left ankle on August 11, 1994.
By decision dated October 20, 2000, appellant received a schedule award for seven
percent impairment of the left lower extremity. She sustained two subsequent employment
injuries, one occurring in 1995 and the other in 1997.2 Appellant returned to work in a full-time
limited-duty capacity until April 28, 2010, when her modified duty was withdrawn pursuant to
the National Reassessment Process (NRP). She was then placed on the periodic compensation
rolls.
Appellant was referred to Dr. Donald A. Mauldin, a Board-certified orthopedic surgeon,
for a second opinion medical examination on May 19, 2011. In his July 25, 2011 report,
Dr. Mauldin noted a history of the accepted 1993 injury and subsequent work injuries occurring
in 1995 and 1997. He provided an impression of status post left ankle sprain. Dr. Mauldin noted
a history of possible mild knee strains (resolved) with no documentation of any significant
injury. He found that appellant developed chronic ankle instability, status post lateral ligament
reconstruction, and chronic subjective ankle complaints with some dysesthesias in the
distribution of the sural nerve. Dr. Mauldin also found appellant status post cervical strain with
no objective documentation of a major structural injury and with chronic bilateral cervical
radicular symptoms of a nonphysiologic nature. He opined that the accepted cervical strain had
resolved. Dr. Mauldin noted a grossly stable left ankle postreconstruction surgery, but
recommended a functional capacity evaluation (FCE) to assess appellant’s left ankle. A June 27,
2011 FCE indicated that appellant could perform a sedentary job with no lifting or walking. In a
July 5, 2011 supplemental report, Dr. Mauldin stated that there was no objective basis for
continuing complaints of the cervical spine, but opined that appellant should be restricted to
sedentary work due to her weight.
An August 24, 2011 magnetic resonance imaging (MRI) scan stated an impression of
stenosis at C3-4, C4-5, C5-6, and C6-7. An October 10, 2011 electromyogram/nerve conduction
velocity (EMG/NCV) study revealed no upper extremity neuropathy or radiculopathy.
In an October 15, 2012 report, Dr. Earl C. Smith, a Board-certified orthopedic surgeon,
noted that appellant reported neck and left arm pain and numbness. He noted the results of the
cervical spine MRI scan showing stenosis at multiple levels and examination findings of 4/5
brachial strength, tenderness in cervical muscles, positive Tinel’s sign at the left cubital tunnel,
and normal cervical range of motion. Dr. Smith diagnosed cervical radiculopathy and cubital
2

OWCP file number xxxxxx235, date of injury November 3, 1995, was accepted for cervical sprain and
spondylosis. In file number xxxxxx207, date of injury April 24, 1997, OWCP accepted cervical sprain, right hip
enthesopathy, and right wrist sprain. The two files were merged with file number xxxxxx207 as the master file. The
merged file was closed in 2008.

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tunnel syndrome. He found appellant able to work eight hours a day with restrictions of no
lifting, no overhead work and no repetitive work. No further action was taken in this case until
March 2013.
In an effort to determine appellant’s updated work capacity, OWCP prepared a statement
of accepted facts (SOAF) dated March 27, 2013 and referred appellant to a second opinion
examination. The SOAF included a description of the June 24, 1993 work injury and related left
ankle surgery. It did not mention either the 1995 or 1997 work injuries.
Dr. Melburn Heubner, a Board-certified orthopedic surgeon and OWCP referral
physician, conducted a second opinion examination. In his April 24, 2013 report, he noted a
history of the 1993, 1995, and 1997 workplace injuries, reviewed medical records and presented
examination findings. He diagnosed resolved cervical strain, left ankle status post successful
ligamentous reconstruction without objective findings of instability with continued complaints of
pain, and nonwork-related atopic dermatitis. He reviewed MRI scans and x-ray findings and
determined that they reflected degenerative changes, but no acute disc disruption. Dr. Heubner
opined that the accepted conditions had resolved. He found the ankle reconstruction was
successful with no objective findings of instability and the MRI scan of the cervical spine
showed degenerative stenosis not related to the 1997 work injury. Dr. Heubner concluded that
work limitations were referable only to appellant’s nonwork-related conditions, such as body
habitus and dermatitis. He also opined that appellant reached maximum medical improvement.
On June 26, 2013 OWCP determined a conflict in medical opinion existed between
Dr. Smith and Dr. Heubner as to whether appellant continued to suffer residuals of the June 24,
1993 work injury and whether she could return to work with or without restrictions. Appellant
was referred to Dr. Bobby L. Stafford, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. In his August 15, 2013 report, Dr. Stafford noted a history of the 1993,
1995, and 1997 work injuries, reviewed the medical records and noted examination findings
which included good range of motion in the neck, no upper extremity weakness of any type,
well-healed left ankle surgical scar, and no restriction of range of motion of the left ankle.
Vague numbness over the lateral aspect of left arm and hand and the ulnar aspect of the long
finger was noted. Reflexes were normal. Appellant’s weight was noted at 340 pounds and she
walked without the aid of a cane, crutches or walker, was in no acute distress, and was able to sit
without difficulty. She also had severe dermatitis of both hands and feet, with weeping, cracked
areas. Dr. Stafford opined that the accepted conditions of bilateral knee sprain/strains, cervical
sprain/strain, left ankle joint derangement, and left plantar fibromatosis had all resolved. He
explained that there was no laxity in the left ankle, no instability in the left knee, and difficulty in
walking was due to body habitus and weight. Dr. Stafford further explained that the cervical
spine condition disclosed by diagnostic testing was degenerative in nature and nonoccupational.
He concluded that appellant could work eight hours a day in sedentary work only due to her
weight and nonoccupational atopic dermatitis.
On September 25, 2013 OWCP advised appellant of its proposed termination of her
compensation and medical benefits as the weight of the medical evidence showed that she had no
further residuals of her accepted 1993 work injury. It accorded the weight of the medical
evidence to Dr. Stafford’s impartial opinion.

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In an October 24, 2013 letter, appellant disagreed with the proposed termination. She
indicated that she had worked limited duty up to the time her work was withdrawn under NRP.
By decision dated October 30, 2013, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective November 17, 2013.
On November 27, 2013 appellant requested a hearing before an OWCP hearing
representative. She subsequently changed her request to a review of the written record.
In an April 23, 2014 letter, appellant’s counsel argued that the March 27, 2013 SOAF did
not include a description of the 1995 or 1997 work injuries. He argued that, since Dr. Stafford
was not provided with an accurate history, his opinion could not be accorded special weight.
In an October 22, 2013 report, Dr. Smith provided an impression of cervical
radiculopathy and cubital tunnel syndrome. He opined that appellant had activity restrictions of
no lifting, overhead work or repetitive activity. An October 22, 2013 duty status report was also
provided.
By decision dated June 6, 2014, an OWCP hearing representative affirmed the
October 30, 2013 OWCP decision. The hearing representative additionally found that
Dr. Smith’s subsequent report did not overcome the weight accorded to Dr. Stafford’s opinion.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.3 OWCP’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.4 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability. To terminate
authorization for medical treatment, OWCP must establish that a claimant no longer has
residuals of an employment-related condition that requires further medical treatment.5
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.6 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 OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

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

5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

6

5 U.S.C. § 8123(a).

4

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.7 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.8
OWCP’s procedure manual provides as follows:
“The [claims examiner] is responsible for ensuring that the SOAF is correct,
complete, unequivocal, and specific. When the [district medical adviser], second
opinion specialist, or referee physician renders a medical opinion based on an
SOAF which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral knee sprain, neck sprain, derangement
of left ankle, and left plantar fibromatosis due to the June 24, 1993 employment injury. It
determined that a conflict arose between Dr. Smith, an attending physician, and Dr. Heubner, an
OWCP referral physician, regarding whether she had any further residuals of her work injury and
whether she was capable of working. Dr. Smith opined that appellant had cervical radiculopathy
and cubital tunnel syndrome and was able to work with activity restriction. Dr. Heubner opined
that the accepted conditions had resolved because there were no objective findings of ankle
instability and the MRI scan of the cervical spine showed degenerative stenosis not related to the
accepted injury. He opined that appellant could work with limitations related to appellant’s
nonwork conditions. Accordingly, OWCP referred appellant to Dr. Stafford for an impartial
medical examination. It terminated appellant’s wage-loss compensation and medical benefits
finding that Dr. Stafford’s report constituted the weight of the evidence that she had no further
employment-related disability.
Before OWCP and on appeal, appellant contends that Dr. Stafford’s report should not be
accorded special weight because the March 27, 2013 SOAF did not include a description of the
1995 or 1997 accepted work injuries. Because of this omission, appellant argues that
Dr. Stafford’s opinion was not based on an accurate factual and medical history.
In requesting an opinion on whether work-related residuals remained and whether
appellant was capable of working, OWCP provided a March 27, 2013 SOAF to both its second
opinion examiners and Dr. Stafford. The March 27, 2013 SOAF failed to include appellant’s
subsequent accepted work-related injuries in 1995 and 1997. The 1995 injury was accepted for
cervical sprain and spondylosis. The 1997 injury was accepted for cervical sprain, right hip
7

20 C.F.R. § 10.321.

8

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).

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enthesopathy, and right wrist sprain.10 The subsequent work-related injuries are relevant to
appellant’s current claim because they involve the body parts for which benefits were being
terminated.
OWCP provides a physician with a SOAF to assure that the medical specialist’s report is
based upon a proper factual background.11 The SOAF must include the date of injury, claimant’s
age, the job held on the date of injury, the employer, the mechanism of injury, and the claimed or
accepted conditions.12 While the inclusion of other workers’ compensation injuries is optional,
the claims examiner must decide all issues requiring a medical opinion for resolution and
determine all facts relevant to the issues to be resolved in the current claim.13
OWCP procedures further indicate that, when an OWCP medical adviser, second opinion
specialist, or referee physician renders a medical opinion based on a SOAF which is incomplete
or inaccurate or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether.14
Dr. Stafford demonstrated some knowledge of the 1995 or 1997 work injuries based on
appellant’s own description, but it is not clear whether he was aware that these conditions had
been accepted by OWCP. Further, the Board notes that in his August 2013 report he concluded
that appellant’s cervical spine condition was degenerative in nature and not occupational.
Dr. Stafford rendered his opinion based on incomplete factual information. The opinion is
therefore of limited probative value. OWCP has the responsibility to obtain from its referral
physician an evaluation that will resolve the issue involved in this case.15 Accordingly, the
Board finds that the case must be remanded for further medical development.
On remand OWCP should prepare a complete, accurate, and updated SOAF and refer
appellant to an appropriate medical specialist for examination and a reasoned opinion of whether
appellant has any residuals from her accepted work-related injuries. Following such further
development as deemed necessary, it shall issue a de novo decision.16

10

Those two files were merged with file number xxxxxx207 as the master file and closed in 2008.

11

Helen Casillas, 46 ECAB 1044 (1995).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.5
(September 2009); see also Darletha Coleman, 55 ECAB 143 (2003).
13

Federal (FECA) Procedure Manual, id. at Chapter 2.809.6(a).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
15

Richard F. Williams, 55 ECAB 343 (2004).

16

In light of the disposition of this case, the second issue regarding whether appellant had any continuing
employment-related residuals or disability after November 17, 2013 and the remaining issues raised on appeal are
moot.

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2014 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for further proceedings consistent
with this decision by the Board.17
Issued: December 11, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2014.

7


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

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 10-504 & 10-754
Issued: November 26, 2010

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 14, 2009 appellant filed a timely appeal from the September 15, 2009 merit
decision of the Office of Workers’ Compensation Programs suspending her compensation for
obstructing a medical examination and the November 25, 2009 nonmerit decision of the Office
denying her request for merit review. On January 27, 2010 she filed a timely appeal from the
December 29, 2009 decision of the Office regarding the continuing suspension of her
compensation for obstructing a medical examination. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over these decisions.
ISSUES
The issues are: (1) whether the Office properly suspended appellant’s right to
compensation beginning February 15, 2009 for obstructing a medical examination; (2) whether
the Office properly denied her October 2009 request for further review of the merits of her claim
pursuant to 5 U.S.C. § 8128(a); and (3) whether the Office properly continued the suspension of
appellant’s compensation for obstructing a medical examination scheduled for April 22, 2009.

FACTUAL HISTORY
The Office accepted that on December 24, 2005 appellant, then a 39-year-old rural carrier
associate, sustained a cervical strain, displacement of intervertebral disc without myelopathy,
thoracic sprain, lumbar sprain and bilateral disorder of bursae and tendons in the shoulders due to
lifting a large package at work. On September 27, 2006 appellant underwent right shoulder
arthrotomy, resection of the coracoacromion ligament, partial acromionectomy and chronic
rotator cuff tear repair. The Office paid compensation for periods of disability.
In a November 7, 2008 letter, appellant was directed to report for a second opinion
examination on December 12, 2008 with Dr. Homer Paschall, a Board-certified orthopedic
surgeon. She indicated that she had another appointment on that date, so the second opinion
examination was rescheduled for January 22, 2009 with Dr. Narinda Aujla, a Board-certified
orthopedic surgeon. Appellant was advised of the consequences for failure to attend and fully
cooperate with a scheduled examination. The Office indicated that, if she failed to provide an
acceptable reason for not appearing for the examination, or if she obstructed the examination, her
benefits would be suspended in accordance with section 8123(d) of the Federal Employees’
Compensation Act. The section provided that, if an employee refused to submit to or obstructs
an examination, her right to compensation would be suspended until the refusal or obstruction
stopped.
Appellant arrived at Dr. Aujla’s office on January 22, 2009 but the scheduled
examination was not carried out. In a January 23, 2009 e-mail, an employee of Dr. Aujla stated
that appellant showed up on January 22, 2009 but “refused to fill out forms and refused to be
examined.” Appellant then “left the office.”
In a January 26, 2009 letter, the Office advised appellant that it proposed to suspend her
compensation for obstructing the January 22, 2009 examination with Dr. Aujla. It stated, “You
showed up for the exam[ination] that was rescheduled, at your request, on January 22, 2009 at
1:00 [p.m.] with Dr. Aujla but refused to fill out forms and refused to get to be examined. You
then left the office.” The Office advised that, when a claimant refuses to attend or cooperate
with a medical examination required, all compensation benefits, including medical expenses, are
suspended. It noted that benefits would not be payable from the effective date of the suspension
through the date of full compliance. The Office informed appellant that, if she believed that she
had a valid reason for failing to submit to or cooperate with the scheduled examination, she must
submit her reasons in writing, with supporting evidence, within 14 days of the date of the letter.
If appellant did not show good cause her entitlement to compensation would be suspended under
5 U.S.C. § 8123(d) until after she attended and fully cooperated with the examination.
In a January 26, 2009 letter, counsel indicated that, while appellant was at the second
opinion examination, Dr. Aujla’s staff wanted her to completely disrobe for the doctor to
examine her. Appellant asked Dr. Aujla why she would have to completely disrobe and advised
that no other doctor had ever required her to completely disrobe to examine her cervical area.
Counsel indicated that appellant reported that Dr. Aujla “thereafter refused to see her.” He
indicated that appellant was willing to undergo a “reasonable” second opinion examination.

2

In a February 2, 2009 letter, Dr. Aujla provided a brief description of appellant’s cervical,
thoracic and lumbar symptoms, stating: “To do a thorough professional exam[ination], the
patient is normally requested to disrobe so one can examine the areas concerned…. [T]he area
of examination was of the cervical, thoracic and lumbar area[s] and it is normal practice for the
patient to be in a gown to do a complete thorough examination.”
In a February 4, 2009 letter, appellant advised that she appeared for the January 22, 2009
examination scheduled with Dr. Aujla. She stated that a nurse explained to her that she had to
take off all her clothes and undergarments and put on a gown. Appellant stated to the nurse that
there must have been a mistake as her injury was to her neck, shoulder and back, but the nurse
insisted that Dr. Aujla wanted her to take her clothes off. Appellant indicated that she had been
to many doctors concerning her injury and not one other doctor required her to remove her
clothing. Dr. Aujla advised her that he could not do a proper physical examination without her
removing all her clothes including her pants and undergarments. When she advised Dr. Aujla
that she had never been asked to remove clothing by any other doctor, other than for surgery, he
responded that he was sorry but that she must not have seen a good doctor up until this point.
Dr. Aujla advised appellant that she must take off all her clothes and she started to get upset.
Appellant advised Dr. Aujla that she had copies of medical records with her, but he responded
that you can “only tell an injury from feeling the person.” She stated that she told Dr. Aujla that
she would take off her top if that would made things easier, but he stated that if she did not take
off her pants he would refuse to examine her. Appellant noted that she agreed with Dr. Aujla
that “he should not examine me.”
In a February 10, 2009 decision, the Office suspended appellant’s benefits effective
February 15, 2009 for obstruction of the examination with Dr. Aujla. It indicated that it was
common practice for a physician to request that a patient change into an examination gown for a
thorough examination and noted that Dr. Aujla had explained, in a February 2, 2009 letter, the
reasons for this practice.
At the June 11, 2009 hearing, appellant described her disagreement with the Office’s
decision to suspend her benefits. She reiterated that Dr. Aujla wanted her to remove all of her
clothes. Appellant stated that if an examination was rescheduled she would cooperate with the
examination.
In a September 15, 2009 decision, the Office hearing representative affirmed the Office’s
February 10, 2009 decision. She indicated that Dr. Aujla had reported that it was necessary for
appellant to disrobe in order to carry out a thorough examination and stated that appellant did not
present a reasonable explanation for her failure to keep or fully cooperate with the scheduled
appointment.
In an October 9, 2009 letter, appellant, through counsel, requested reconsideration of her
claim. Counsel argued that appellant had never been required to remove her undergarments in
more than 50 examinations and indicated that Dr. Alyn Benezette, an attending osteopath, did
not feel that it was necessary for her to remove her undergarments for an examination. Counsel
contended that the Office did not comply with its procedures which provide that, in order to
invoke suspension of compensation, a claimant must be properly notified of her responsibilities
with respect to a scheduled medical examination.

3

Appellant submitted September 23 and October 16, 2009 reports in which Dr. Benezette
evaluated her medical condition. In an October 8, 2009 letter, Dr. Benezette stated, “It is my
opinion that [appellant] would not need to completely disrobe, that is remove all other clothing,
including underwear, to undergo a complete evaluation as related to her on-the-job injuries
sustained on December 24, 2005.”
In a November 25, 2009 decision, the Office denied her request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant expressed her willingness to appear for another second opinion medical
examination and the Office scheduled an appointment on April 22, 2009 with Dr. Steven
Lancaster, a Board-certified orthopedic surgeon. The Office again advised appellant that, if she
failed to provide an acceptable reason for not appearing for the examination, or if she obstructed
the examination, her benefits would be suspended in accordance with section 8123(d) of the Act.
In an April 22, 2009 report, Dr. Lancaster detailed his findings on examination and
diagnosed cervical strain with herniated nucleus pulposus and degenerative disc disease, lumbar
strain with herniated nucleus pulposus and degenerative disc disease, bilateral shoulder
impingement, status post rotator cuff repair and subacromial decompression of the right shoulder
and chronic pain syndrome. He indicated that upon request appellant showed an inability to flex
her chin downward to any extent. However, upon distraction, during a portion of the evaluation
when appellant was looking at her feet and she was asked to dorsiflex her feet, she was able to
bend her neck fully down to look at her feet. She could not hyperextend more than 5 degrees to
look at the ceiling and could not side rotate more than 30 degrees, but with further distraction
through the course of the examination she was able to side rotate past this. With respect to her
shoulders, appellant had pain, limitation of motion and a positive impingement sign as she would
not allow full motion. Back examination showed her sitting comfortably at 90 degrees which she
reported that she could not do for any period of time. However, through the course of this
examination for 15 to 20 minutes, appellant sat comfortably with no problems at 90 degrees.
Dr. Lancaster advised that it was impossible to ascertain appellant’s current condition
with the degree of symptom magnification present, malingering and invalidity of her
examination and functional capacity evaluation.1 He indicated that appellant’s prior functional
capacity evaluation appeared to show only 10 pounds of lifting ability on an occasional basis, but
these results were unreliable because of her symptom magnification. Dr. Lancaster stated that he
would not recommend a repeat functional capacity evaluation as appellant probably would have
the same degree of symptom magnification which would lead to unreliable and invalid results.
He stated, “She is not going to be able to return to work the degree that she had previously,
secondary to the severe amount of chronic narcotics that she is taking which affect her ability to
function mentally.” Dr. Lancaster filled out a work restriction form but indicated that it was
difficult to provide such restrictions “because of her symptom magnification and poor validity on
her previous functional capacity evaluation and this examination as well.” He noted that
appellant appeared to still have residuals of her work injuries and stated, “She is unable to work
1

Appellant underwent a functional capacity evaluation in March 2006 that was deemed to show gross symptom
magnification and submaximal effort.

4

to any capacity taking the degree of narcotics that she is currently doing due to mental status
changes.”
In a May 19, 2009 letter, the Office advised appellant that it proposed to suspend her
compensation for obstructing the April 22, 2009 examination with Dr. Lancaster. It noted that
appellant’s compensation was presently suspended because she failed to cooperate with the
January 22, 2009 second opinion medical examination and stated that because she indicated her
willingness to cooperate a new second opinion examination was scheduled for April 22, 2009.2
The Office noted that it had been advised that she obstructed the April 22, 2009 examination
with Dr. Lancaster and detailed those portions of Dr. Lancaster’s April 22, 2009 report in which
he expressed his belief that appellant engaged in symptom magnification and malingering that
rendered the findings invalid. It again advised that, when a claimant refuses to attend or
cooperate with a medical examination required by it, all compensation benefits, including
medical expenses, are suspended. The Office informed appellant that, if she believed that she
had a valid reason for failing to submit to or cooperate with the scheduled examination, she must
submit her reasons in writing, with supporting evidence, within 14 days of the date of the letter.
If appellant did not show good cause her entitlement to compensation would be suspended under
5 U.S.C. § 8123(d) until after she attended and fully cooperated with the examination.
In a May 26, 2009 statement, appellant disagreed with the choice of questions
Dr. Lancaster asked her. She also objected to Dr. Lancaster not viewing the diagnostic test
findings she brought with her to the appointment. In June 2 and 8, 2009 letters, counsel pointed
out that Dr. Lancaster found, regardless of the alleged symptom magnification, that appellant
was totally disabled due to the amount of narcotic medication she was using. Appellant
submitted a May 29, 2009 report in which Dr. Benezette described the treatment of her
condition.
In a July 27, 2009 decision, the Office suspended appellant’s compensation for
obstructing the second opinion examination with Dr. Lancaster.3 It found that the additional
evidence submitted by appellant did not show that her actions during the April 22, 2009
examination were nonvolitional.
Appellant requested a hearing before an Office hearing representative. At the
November 5, 2009 hearing, she testified that she fully cooperated during the April 22, 2009
examination. Counsel contended that the fact that symptom magnification was diagnosed did not
necessarily show that appellant’s actions were volitional.
In a December 29, 2009 decision, the Office hearing representative affirmed the July 27,
2009 decision. She found that the differing findings of more complete ranges of motion on

2

It does not appear that appellant received compensation after February 14, 2009. Although the Office indicated
that it proposed to suspend appellant’s compensation, it effectively proposed to continue the suspension of her
compensation that began February 15, 2009.
3

The decision indicated that the suspension was “made final, effective July 27, 2009,” but the decision effectively
continued the suspension of compensation that began February 15, 2009.

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distraction by Dr. Lancaster argued against the fact that appellant’s symptom magnification and
malingering were somehow nonvolitional and related to her condition.
LEGAL PRECEDENT -- ISSUE 1
Section 8123(a) of the Act4 authorizes the Office to require an employee who claims
compensation for an employment injury to undergo such physical examinations as it deems
necessary. The determination of the need for an examination, the type of examination, the choice
of local and the choice of medical examiners are matters within the province and discretion of the
Office. The only limitation on this authority is that of reasonableness.5 Section 8123(d) of the Act
provides that, “[i]f an employee refuses to submit to or obstructs an examination, his right to
compensation is suspended until refusal or obstruction stops.”6
ANALYSIS -- ISSUE 1
The Office accepted that on December 24, 2005 appellant sustained a cervical strain,
displacement of intervertebral disc without myelopathy, thoracic sprain, lumbar sprain and
bilateral disorder of bursae and tendons in the shoulders due to lifting a large package at work.
Due to the need for additional assessment of appellant’s medical condition, the Office properly
scheduled a second opinion examination for January 22, 2009 with Dr. Aujla, a Board-certified
orthopedic surgeon. Appellant was advised of the consequences for failure to attend and fully
cooperate with a scheduled examination. The Office indicated that, if appellant failed to provide
an acceptable reason for not appearing for the examination, or if she obstructed the examination,
her benefits would be suspended in accordance with section 8123(d) of the Act.
The Board finds that appellant obstructed the second opinion examination scheduled with
Dr. Aujla on January 22, 2009 and therefore the Office properly suspended her compensation
effective February 15, 2009. Appellant appeared at Dr. Aujla’s office on January 22, 2009 but
an employee of Dr. Aujla’s office indicated that appellant refused to fill out forms or to be
examined and then left the office. She stated that Dr. Aujla asked her to completely disrobe,
including removing underwear and change into an examination gown for the examination.
Appellant indicated that she advised Dr. Aujla that no other physician had asked her to
completely disrobe and change into a robe, but noted that Dr. Aujla insisted that it was necessary
to do so in order to carry out the examination and that she left the office after Dr. Aujla would
not change his position. The record contains a February 2, 2009 letter in which Dr. Aujla stated
that in order to perform a thorough, professional examination, the patient is normally requested
to disrobe and change into a gown so one can examine the areas concerned, which in appellant’s
case involved the cervical, thoracic and lumbar areas. The Board notes that given Dr. Aujla’s
expressed opinion that disrobing and changing into a gown was necessary to carry out a
complete, thorough examination of appellant’s multiple affected areas, it was unreasonable for

4

5 U.S.C. § 8123(a).

5

See Dorine Jenkins, 32 ECAB 1502, 1505 (1981).

6

5 U.S.C. § 8123(d). See 20 C.F.R. § 10.323.

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appellant to object to Dr. Aujla’s request and leave the office. Therefore, her actions constituted
obstruction of the January 22, 2009 examination.
On appeal counsel argued that the fact that other physicians who examined appellant did
not require her to disrobe showed that Dr. Aujla’s actions were unreasonable. He noted that
Dr. Benezette, an attending osteopath, had indicated that it was not necessary for appellant to
completely disrobe in order to undergo a complete examination. However, the actions of other
physicians would not necessarily show that Dr. Aujla’s method of examination was improper.
Dr. Aujla noted that there was an extensive area to be examined and presented a reasonable
opinion that changing into an examination gown, a common practice in examinations, was
necessary for a proper examination.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,7
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.8 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.9 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.10 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record11 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.12 While a reopening of a case may be predicated solely on
a legal premise not previously considered such reopening is not required where the legal
contention does not have a reasonable color of validity.13
ANALYSIS -- ISSUE 2
In connection with her October 2009 reconsideration request, appellant, through counsel,
argued that she had never been required to remove her undergarments before Dr. Aujla’s request

7

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

12

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13

John F. Critz, 44 ECAB 788, 794 (1993).

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and indicated that her primary attending physician, Dr. Benezette, did not feel that it was
necessary for her to remove her undergarments for an examination.
The submission of this argument would not require reopening of appellant’s claim for
merit review as appellant had already made such arguments and the Office had already
considered and rejected them. Appellant resubmitted an October 8, 2009 letter in which
Dr. Benezette indicated that she would not need to completely disrobe to undergo a complete
evaluation. However, the Office had already considered this letter in rendering its prior decision.
Counsel alleged that the Office did not comply with its procedures which dictated that, in
order to invoke suspension of compensation, a claimant must be properly notified of her
responsibilities with respect to a scheduled medical examination. However, this argument does
not have a color of validity as appellant was fully apprised of the consequences of refusing to
submit to or obstructing an examination. Appellant submitted September 23 and October 16,
2009 reports in which Dr. Benezette evaluated her medical condition, but these reports bear no
relevance to the main issue of the present case.
Appellant has not established that the Office improperly denied her request for further
review of the merits of its September 15, 2009 decision under section 8128(a) of the Act,
because the evidence and argument she submitted did not to show that the Office erroneously
applied or interpreted a specific point of law, advance a relevant legal argument not previously
considered by the Office, or constitute relevant and pertinent new evidence not previously
considered by the Office.
LEGAL PRECEDENT -- ISSUE 3
Section 8123(a) of the Act authorizes the Office to require an employee who claims
compensation for an employment injury to undergo such physical examinations as it deems
necessary. The determination of the need for an examination, the type of examination, the choice
of local and the choice of medical examiners are matters within the province and discretion of the
Office. The only limitation on this authority is that of reasonableness. Section 8123(d) of the Act
provides that, “[i]f an employee refuses to submit to or obstructs an examination, his right to
compensation is suspended until refusal or obstruction stops.”14
ANALYSIS -- ISSUE 3
After the Office suspended appellant’s compensation effective February 15, 2009 for
obstructing the second opinion examination scheduled with Dr. Aujla, appellant agreed to appear
for another second opinion examination on April 22, 2009 with Dr. Lancaster, a Board-certified
orthopedic surgeon. Appellant was advised of the consequences for failure to attend and fully
cooperate with a scheduled examination.

14

See supra notes 4 through 6.

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The Board finds that appellant obstructed the April 22, 2009 examination with
Dr. Lancaster and that therefore the Office properly continued to suspend her compensation.15
Appellant appeared for the examination on April 22, 2009 but Dr. Lancaster concluded that it was
impossible to ascertain her current condition given the degree of symptom magnification and
malingering she exhibited at the examination. Dr. Lancaster found that these actions rendered the
examination invalid.16 He completed a work restriction form for appellant but indicated that it was
difficult to provide such restriction “because of her symptom magnification and poor validity on
her previous functional capacity evaluation and this examination as well.” Dr. Lancaster described
several instances when appellant indicated that she was not able to perform certain actions but was
in fact able to perform them when she was distracted. For example, he stated that upon request
appellant showed an inability to flex her chin downward to any extent, but upon distraction, during
a portion of the evaluation when she asked to dorsiflex her feet, she was able to bend her neck
fully down to look at her feet. Appellant claimed that she could not side rotate more than 30
degrees, but with further distraction through the course of the examination she was able to side
rotate past this point. Dr. Lancaster indicated that appellant claimed that she could not sit
comfortably with her back at 90 degrees for any period of time, but noted that through the course
of the examination she was able to do so for 15 to 20 minutes. The Board finds that, given
Dr. Lancaster’s opinion that appellant’s volitional actions rendered the April 22, 2009 examination
invalid, the Office properly found that she had obstructed the examination.
On appeal counsel argued that appellant provided full cooperation at the April 22, 2009
examination with Dr. Lancaster and that the conflicting findings were not a result of volitional
actions. He noted that Dr. Lancaster posited that appellant had limitations due to the narcotics she
was taking and suggested that her use of narcotics resulted in conflicting findings that were
nonvolitional. Counsel did not adequately explain how appellant’s use of narcotics would be the
cause of conflicting findings on examination. Dr. Lancaster provided no opinion that appellant’s
use of narcotics affected her actions at the April 22, 2009 examination, but rather found that her
actions, which led to the invalidity of the findings, were volitional in nature.
CONCLUSION
The Board finds that the Office properly suspended appellant’s right to compensation
effective February 15, 2009 for obstructing a medical examination and finds that the Office
properly denied appellant’s request for further merit review regarding this matter. The Board
further finds that the Office properly continued to suspend appellant’s compensation for
obstruction of a medical examination scheduled for April 22, 2009.

15

It does not appear that the Office reinstated appellant’s compensation at any point after the February 15, 2009
suspension.
16

Dr. Lancaster also pointed out that at a functional capacity evaluation in March 2006 appellant exhibited gross
symptom magnification and submaximal effort.

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ORDER
IT IS HEREBY ORDERED THAT the December 29, November 25 and September 15,
2009 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 26, 2010
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
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
New Orleans, LA, Employer
)
___________________________________________ )
B.R., Appellant

Appearances:

Docket No. 07-1765
Issued: December 21, 2007

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 1, 2007, which denied her claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue on appeal is whether appellant has met her burden of proof in establishing that
she sustained a chest injury in the performance of duty.
FACTUAL HISTORY
This is the second appeal in this case. In a December 23, 2003 decision, the Board
affirmed a February 10, 2003 Office decision which denied appellant’s request for a review of
the merits of her claim. The Board determined that appellant failed to show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office or submit relevant and pertinent new evidence not

previously considered by the Office.1 The facts and the circumstances of the case up to that
point are set forth in the Board’s prior decision and incorporated herein by reference.2
In a letter dated September 30, 2004, appellant requested reconsideration. In a
December 5, 2000 medical form report, signed by a nurse, it was noted that she experienced
pressure on her chest and could not complete her shift at work. In a December 12, 2001 form
report, a physician whose signature is illegible, noted that appellant reported severe chest pain in
the sternum area and neck pain and was transported to a hospital for treatment. Appellant
submitted several return to work slips prepared by Dr. Anthony J. Bouligny, a Board-certified
internist, dated December 14, 2001 to October 28, 2003. Dr. Bouligny noted that appellant was
treated for hypertension, cervical spine pain, headaches, chest pain and costochondritis. A
magnetic resonance imaging (MRI) scan of the left shoulder dated October 21, 2002 revealed
mild tendinosis with mild degenerative changes seen in the acromioclavicular and humeral head.
Employing establishment medical records dated May 1, 2003 noted that appellant was treated for
chest pain in the sternum area of the chest. An MRI scan of the right shoulder dated July 28,
2003 revealed a possible small partial tear of the supraspinatus tendon.
In a decision dated June 14, 2005, the Office denied modification of a January 31, 2002
decision.
In a letter received on February 8, 2006, appellant requested reconsideration. Appellant
submitted an x-ray of the chest dated November 23, 2000 which revealed mild cardiomegaly. A
November 23, 2000 emergency room report from Dr. Victor M. Garcia-Prats, Board-certified in
emergency medicine, noted that appellant presented with aching chest pain in the superior
anterior of the chest which radiated to her back and was exacerbated by movement. He
diagnosed chest wall pain and musculoskeletal pain. In an attending physician’s report of the
same date, Dr. Garcia-Prats noted that appellant was pulling an over-the-road container and
pulled muscles in the chest and back. He diagnosed muscular strain of the back and chest and
noted with a checkmark “yes” that appellant’s condition was caused or aggravated by an
employment activity. An injury information report dated November 27, 2000 noted that on
November 23, 2000 appellant was connecting a mail container and experienced chest and back
pain.
Appellant submitted reports from Dr. Joseph Rauchwerk, a Board-certified orthopedic
surgeon, dated June 25 and July 18, 2001. He noted that on November 23, 2000 appellant was
pulling a mail container and had pain in the mid-back, right arm and anterior chest wall.
Appellant noted that an MRI scan of the cervical spine revealed multilevel disc derangement and
shoulder impingement. Dr. Rauchwerk diagnosed kyphoscoliosis, advanced dorsal disc
derangement multilevel, impingement syndrome of the right shoulder, cervical spondylosis and
probable disc displacement with radiculitis and radiculopathy and recommended appellant return
to light duty. In reports dated July 25 and August 22, 2001, he opined that appellant’s
supraspinatus tendinitis, acromioclavicular joint arthritis and cervical spondylosis were
1

On November 28, 2000 appellant filed a claim alleging that on November 23, 2000 she experienced chest pain
when connecting a road container to a tow motor while in the performance of duty.
2

Docket No. 03-1297 (issued December 23, 2003).

2

aggravated by her job. Dr. Rauchwerk diagnosed cervical disc displacement, thoracic
spondylosis and shoulder impingement and recommended arthroscopic shoulder surgery. In an
August 28, 2001 report, he noted that appellant had job-related supraspinatus tendinitis and
secondary impingement syndrome and acromioclavicular joint arthritis of the right shoulder and
was undergoing arthroscopic surgery.
On November 14, 2001 Dr. Rauchwerk noted treating appellant for a job-related injury
that occurred on November 23, 2000 for which she presented with neck, chest, scapular and right
shoulder pain. He diagnosed rotator cuff syndrome, acromioclavicular joint hypertrophy, spur of
the acromion, impingement syndrome and cervical spondylosis. On December 11, 2001 he
noted that appellant reported having chest and right arm pain after pulling heavy equipment.
Dr. Rauchwerk diagnosed cervical spondylosis, supraspinatus tendinitis and impingement of the
right shoulder and opined that appellant’s job-related injury that resulted from pulling the heavy
equipment “could have created the bursitis of the right shoulder” even though she had a
preexisting abnormal acromion. Dr. Rauchwerk noted that the cervical spondylosis was also
preexisting but the actual pulling incident aggravated the preexisting problem responsible for her
chest pain.
In an August 23, 2005 report, Dr. Kenneth N. Addato, a Board-certified orthopedic
surgeon, treated appellant for an injury which occurred after lifting a tray of mail in 2003 which
caused neck and bilateral shoulder pain. He noted appellant’s history was significant for a neck,
chest and shoulder injury which occurred in November 2000. Dr. Addato diagnosed cervicalgia,
unspecified disorders of the bursae and tendons in the shoulder and returned appellant to
restricted duty.
In a decision dated May 3, 2006, the Office denied modification of the June 14, 2005
decision.
By letter dated March 30, 2007, appellant requested reconsideration. In a May 18, 2005
report, Dr. Evalina Burger, an orthopedic surgeon, noted that appellant presented with middle
and lower back pain. She indicated that appellant’s chest pain improved after starting asthma
treatment. Dr. Burger noted that x-rays of the spine revealed severe kyphosis and severe anterior
spurring and disc space collapse and recommended a bone mineral density study.
In a decision dated June 1, 2007, the Office denied modification of the May 3, 2006
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. These are the essential

3

elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.5
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.6 The weight of the medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.7
ANALYSIS
The Office properly found that the November 23, 2000 lifting incident occurred as
appellant alleged. The Board finds, however, that the medical evidence is insufficient to
establish that appellant sustained a chest injury causally related to the November 23, 2000
incident.
Appellant submitted an emergency room report from Dr. Garcia-Prats dated
November 23, 2000. Dr. Garcia-Prats noted that appellant presented with aching chest pain in
the superior-anterior of the chest which radiated to her back and was exacerbated by movement.
However, he did not address a history of the injury or the employment factors believed to have
caused or contributed to appellant’s condition.8 Additionally, Dr. Garcia-Prats failed to provide
3

Gary J. Watling, 52 ECAB 357 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

4

a rationalized opinion regarding the causal relationship between appellant’s condition and the
factors of employment believed to have caused or contributed to such condition.9 In an attending
physician’s report of the same date, he noted that appellant was pulling a container and pulled
muscles in the chest and back. Dr. Garcia-Prats diagnosed muscular strain of the back and chest
and noted with a checkmark “yes” that appellant’s condition was caused or aggravated by an
employment activity. However, the Board has held that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s condition was related to the history given is of little probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.10
Appellant also submitted several return to work slips prepared by Dr. Bouligny dated
December 14, 2001 to October 28, 2003, who noted treating appellant for several conditions.
However, Dr. Bouligny did not relate any diagnosed condition to the November 23, 2000
employment incident.
Appellant submitted reports from Dr. Rauchwerk who noted that on November 23, 2000
appellant was pulling a container at work and had pain in the mid-back, right arm and anterior
chest wall. Dr. Rauchwerk diagnosed kyphoscoliosis, advanced dorsal disc derangement
multilevel, impingement syndrome of the right shoulder, cervical spondylosis and probable disc
displacement with radiculitis and radiculopathy. However, he failed to provide a rationalized
opinion regarding the causal relationship between appellant’s diagnosed conditions and the
factors of employment believed to have caused or contributed to such condition. In reports dated
July 25 to November 14, 2001, Dr. Rauchwerk noted that appellant’s supraspinatus tendinitis
was job related and that the acromioclavicular joint arthritis and cervical spondylosis were
aggravated by her job. However, these do not contain rationale in which the physician explains
the reasons why appellant’s neck, chest, scapular and right shoulder conditions were work
related. Dr. Rauchwerk also did not explain the reasons why appellant’s symptoms would not be
attributable to her preexisting abnormal acromion and cervical spondylosis. In a report dated
December 11, 2001, he noted that appellant reported developing chest and right arm pain after
pulling heavy equipment. Dr. Rauchwerk diagnosed cervical spondylosis, supraspinatus
tendinitis and impingement of the right shoulder and opined that appellant’s job-related injury
that resulted from pulling the heavy equipment “could have” created the bursitis of the right
shoulder. Although he noted that appellant’s condition “could have” been work related, he
couched his opinion in speculative terms. The Board has held that medical opinions which are
speculative or equivocal in character have little probative value.11 Therefore, this report is also
insufficient to meet appellant’s burden of proof.
Dr. Addato’s report dated August 23, 2005 noted appellant’s treatment for an injury
which occurred after lifting a tray of mail in 2003 and caused neck and bilateral shoulder pain.
9

See Jimmie H. Duckett, supra note 7.

10

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).

5

He noted that appellant’s history was significant for a neck, right shoulder and chest injury which
occurred on November 23, 2000 while at work. However, Dr. Addato failed to provide a
rationalized opinion regarding the causal relationship between appellant’s neck and bilateral
shoulder pain and the factors of employment believed to have caused or contributed to such
condition.12 Additionally, he appears to attribute appellant’s condition to a work injury which
occurred in 2003. Therefore, this report is insufficient to meet appellant’s burden of proof.
In a May 18, 2005 report, Dr. Burger noted that x-rays of the spine revealed severe
kyphosis, severe anterior spurring and disc space collapse and noted improvement in appellant’s
chest pain after starting asthma treatment. However, this report does not specifically address
whether appellant sustained a work-related injury on November 23, 2000.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.13
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a chest injury causally related to her November 23, 2000 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 21, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
12

Jimmie H. Duckett, supra note 7.

13

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1473
Issued: November 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 3, 2020 appellant, through counsel, filed a timely appeal from a June 23, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 29, 2018, finding that she no
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.

longer had disability or residuals causally related to her accepted March 24, 1986 employment
injury; and (2) whether appellant has met her burden of proof to establish continuing employmentrelated disability or residuals, on or after November 29, 2018, due to the accepted March 24, 1986
employment injury.
FACTUAL HISTORY
On March 25, 1986 appellant, then a 26-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 24, 1986 she injured the left side of her neck when she
lifted three trays of mail from a tub while in the performance of duty. She stopped work on May 8,
1986 and did not return. OWCP accepted the claim for cervical strain and torticollis and paid
appellant wage-loss compensation on the daily rolls commencing May 9, 1986 and on the periodic
rolls commencing September 28, 1986.
Dr. Charles E. Oates, a Board-certified psychiatrist and neurologist, performed OWCPauthorized botulinum toxin injections on March 24, 1994 that did not improve appellant’s headturning or pain symptoms. He submitted periodic reports through November 20, 1995
recommending that she elect disability retirement benefits as she was unable to tolerate sedentary
work.
In reports from October 21, 1996 through April 10, 2000, Dr. Stephen S. Kirzinger, a
Board-certified neurologist, noted that appellant’s torticollis remained unchanged, with a constant
head tilt toward the right, mild decreased sensitivity to pinprick in the left median nerve
distribution, and tightness of the left trapezius. He recommended that she pursue disability benefits
as she was unable to work.
In an August 3, 2000 report, Dr. Joseph Jankovic, a Board-certified psychiatrist and
neurologist specializing in movement disorders, summarized a history of injury and treatment. He
noted that botulinum toxin, a cervical collar, and a tricyclic antidepressant were not e ffective in
managing appellant’s symptoms. On examination, Dr. Jankovic noted head tilt, stiffness in the
right scalenus, capitus, and trapezius, the inability to straighten her neck when she walked, and
approximately two inches of shoulder elevation of the right side compared with the left. He
diagnosed post-traumatic dystonia with possible somatoform embellishment.
From December 3, 2001 through 2008, appellant was followed by Dr. Walter L. Olson, Jr.,
a Board-certified neurologist, who diagnosed spasmodic torticollis caused by the accepted
employment injury, unresponsive to medication and botulinum injections. 3 Dr. Olson found her
totally and permanently disabled for work. 4

3

From January 9 through July 10, 2002 and in February 2003, appellant underwent a series of OWCP-authorized
botulinum injections.
4

In a sworn statement dated February 10, 2010, Dr. Olson noted that his review of surveillance videos obtained by
the employing establishment’s Office of Inspector General (OIG), demonstrating appellant driving and shopping on
January 12, 2010. He opined that her carriage and head and neck movements in the video were quite different than
those displayed in his office during physical examinations.

2

On August 21, 2008 OWCP received a November 16, 1988 report by Dr. Robert F. Sexton,
a neurosurgeon, noting that, an electromyography study (EMG) confirmed the diagnosis of
spasmodic torticollis, a disease similar to reflex dystrophy caused by the March 24, 1986
employment injury.
On August 25, 2008 OWCP amended acceptance of the claim to include a neck sprain and
spasmodic torticollis.
Dr. Olson submitted additional reports through September 25, 2012 finding appellant’s
condition unchanged.
In reports from September 16, 2013 through June 7, 2016, Dr. Kathrin Lafaver, a Boardcertified psychiatrist and neurologist, diagnosed post-traumatic dystonia musculorum deformans
and spasmodic torticollis. She opined that appellant’s dystonia was in a nearly fixed position and
not expected to improve.
On March 3, 2017 OWCP referred appellant, a statement of accepted facts (SOAF), and a
series of questions for a second opinion evaluation with Dr. Thomas E. Menke, a Board-certified
orthopedic surgeon, to provide an opinion regarding the nature and extent of any disability, work
restrictions, and treatment due to the accepted conditions.
In a report dated April 24, 2017, Dr. Menke reviewed the medical record and SOAF. On
examination, he noted that appellant held her neck with right lateral bend of 50 degrees and rotation
to the right of 30 degrees. Dr. Menke noted restricted range of cervical spine motion in all planes,
tenderness to palpation over the posterior region of the neck and cervical paraspinal musculature,
with no correlating palpable cords. He also reviewed surveillance videos obtained by the
employing establishment’s OIG, collected from December 30, 2009 through February 18, 2010.
The videos showed appellant holding her head in a neutral position, rotating her head in both
directions, and entering and exiting small cars without difficulty. Dr. Menke diagnosed a resolved
cervical strain with no signs of spastic torticollis. He returned appellant to full, unrestricted-duty
work.
On May 25, 2017 OWCP issued appellant a notice advising of its proposed termination of
her wage-loss compensation and medical benefits, based on the second opinion physician finding
that she had no residuals or disability due to the March 24, 1986 employment injury. It afforded
her 30 days to submit additional evidence or argument, if she disagreed with the proposed
termination, and enclosed the April 24, 2017 report from Dr. Menke.
In response, appellant submitted a June 10, 2017 statement contending that Dr. Lafaver
continued to find appellant’s totally disabled for work. She also provided an excerpt from an
April 6, 2011 grievance settlement agreement.
By decision dated July 17, 2017, OWCP finalized its proposed termination of wage-loss
compensation and medical benefits, effective July 23, 2017.
On July 25, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review, held January 17, 2018.

3

Appellant submitted reports from Dr. Angela M. Hardwick, a Board-certified neurologist,
dated from January 31, 2017 through January 4, 2018 diagnosing continued spasmodic torticollis
secondary to the employment injury, and cervical radiculopathy at C3 -4 and C6-7 as sequelae of
long-term cervical dystonia.
By decision dated April 3, 2018, an OWCP hearing representative reversed the July 17,
2017 decision, finding that Dr. Menke did not provide an adequate explanation as to why the
objective findings on examination were no longer related to the employment injury. She directed
OWCP to further develop the issue and request a supplemental report from Dr. Menke.
On June 27, 2018 OWCP referred appellant, a SOAF, and a new series of questions for a
second opinion evaluation with Dr. Menke, to clarify his opinion regarding the nature and extent
of any disability, work restrictions, and treatment due to the accepted conditions. The SOAF
provided to his noted that OWCP had accepted cervical spasmodic torticollis as work related.
OWCP instructed Dr. Menke that he must use the SOAF as the only factual framework for his
opinion.
In a July 30, 2018 report, Dr. Menke noted that appellant had recently developed left
shoulder symptoms in addition to her continuing neck symptoms. On examination, he observed
that she held her head with a right lateral bend of the neck of 40 to 50 degrees and rotated
approximately 20 degrees to the right, 4/5 strength throughout both upper extremities except for
3+/5 in the left deltoid and bicep. Dr. Menke noted that although appellant held her head rotated
and tilted to the right, she had “no palpable cords in the strap muscles or evidence of muscle spasm
on examination. He opined that the only clinical finding consistent with spasmodic torticollis was
her neck position, although she had no evidence of fibrosis within the muscles as would be
expected in a patient with long-term spasmodic torticollis. Dr. Menke concluded that the
March 24, 1986 employment injury had caused a cervical strain, long resolved, but that appellant
“did not fit the diagnosis of spasmodic torticollis.” He returned her to full, unrestricted duty.
On October 10, 2018 OWCP issued appellant a notice advising of its proposed termination
of her wage-loss compensation and medical benefits, based on the second opinion physician
finding that she had no residuals or disability due to the March 24, 1986 employment injury. It
afforded her 30 days to submit additional evidence or argument, if she disagreed with the proposed
termination, and enclosed the July 30, 2018 report from Dr. Menke.
In response, appellant submitted an October 17, 2018 statement, contending that
Dr. Menke, an orthopedist, was not qualified to render an opinion on torticollis, a neurological
condition.
By decision dated November 30, 2018, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective November 29, 2018. It found that the
weight of the medical evidence rested with Dr. Menke, the second opinion physician.
On December 13, 2018 appellant requested a hearing with a representative of OWCP’s
Branch of Hearings and Review, later modified to a request for a telephonic hearing. At the
hearing, held April 16, 2019, she contended that she remained permanently and totally disabled

4

due to the accepted cervical torticollis. Appellant provided September 24, 2018 reports from
Dr. Hardwick finding appellant’s condition unchanged.
By decision dated June 28, 2019, an OWCP hearing representative affirmed the
November 30, 2018 decision, finding that Dr. Menke’s opinion continued to represent the weight
of the medical evidence.
On July 31, 2019 appellant, through counsel, requested reconsideration. Appellant
submitted a July 23, 2019 report by Dr. Hardwick finding appellant’s condition unchanged.
In a September 6, 2019 statement, appellant contended that OWCP had not properly
developed the medical evidence of record as it had not sent Dr. Hardwick a questionnaire.
By decision dated October 18, 2019, OWCP denied modification of the June 28, 2019
decision.
On November 21, 2019 appellant requested reconsideration. She submitted copies of
evidence previously of record.
By decision dated December 17, 2019, OWCP denied reconsideration.
On March 25, 2020 appellant, through counsel, requested reconsideration of OWCP’s
December 17, 2019 decision. Counsel submitted a February 6, 2020 report by Dr. Hardwick,
finding that numerous medical specialists had confirmed that appellant had spasmodic torticollis,
including Dr. Jankovic, a world expert on movement disorders and former president of an
international movement disorder society. Dr. Hardwick contended that Dr. Menke, an orthopedist,
erred by equating a lack of muscular fibrosis with the absence of torticollis. She explained that
“[f]ibrosis of the muscle ha[d] nothing to do with spasmodic torticollis evaluation or treatment,”
which was performed by neurologists and not by orthopedists. Dr. Hardwick concluded that
appellant’s documented spasmodic torticollis remained active and disabling.
By decision dated June 23, 2020, OWCP denied modification of the October 18, 2019
decision.
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.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

5

D.B., Docket No. 19-0663 (issued August 27, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

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 compensation.8 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 29, 2018.
OWCP accepted that appellant sustained a cervical sprain and spasmodic torticollis. To
obtain an updated report on the nature and extent of the accepted conditions, it referred her to
Dr. Menke for a second opinion examination. The SOAF provided to him clearly noted that
OWCP had accepted spasmodic torticollis as employment related. Furthermore, OWCP instructed
Dr. Menke to use the SOAF as the only factual basis for his opinion.
The Board finds, however, that Dr. Menke did not base his July 30, 2018 report on the
SOAF provided for his review. Dr. Menke opined that appellant “did not fit the diagnosis of
spasmodic torticollis,” a condition accepted by OWCP and listed in the SOAF. OWCP’s
procedures dictate that, when an OWCP medical adviser, second opinion specialist, or referee
physician render a medical opinion based on a SOAF which is incomplete or inaccurate , or does
not use the SOAF as the framework in forming his or her opinion, the probative value of the
opinion is seriously diminished or negated altogether. 10 As Dr. Menke did not base his report on

6

A.R., Docket No. 20-0335 (issued August 7, 2020); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis,
40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

V.S., Docket No. 19-1792 (issued August 4, 2020); K.W., Docket No. 19-1224 (issued November 15, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
8

A.T., Docket No. 20-0334 (issued October 8, 2020); A.G., Docket No. 19-0220 (issued August 1, 2019); A.P.,
Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005);
Furman G. Peake, 41 ECAB 361, 364 (1990).
9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); Furman G.
Peake, id.
10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see also D.F., Docket No. 20-1286 (issued June 17, 2021).

6

the SOAF, the Board finds that the probative value of his o pinion is diminished and not of
sufficient weight to represent the weight of the medical evidence.11
The Board finds, therefore, that OWCP has not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective November 29, 2018.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 29, 2018.12
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: November 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

Id.

12

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

7