L.J. and Department of the Air Force, Sheppard Air Force Base, TX (Board decision, April 22, 2016)

ECAB final decision. The Board affirmed in part and reversed in part OWCP’s August 11, 2014 termination of L.J.’s benefits. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

L.J., an Air Force secretary, received compensation and medical treatment after a work injury to her left foot, with an accepted temporary aggravation of a back condition. OWCP terminated both wage-loss compensation and medical benefits. The Board found sufficient medical evidence to support ending wage-loss compensation and back-related medical benefits. But the impartial examiner had not addressed whether the accepted foot conditions still required treatment, and other physicians continued to report foot symptoms. The Board reversed the termination of medical benefits for those foot conditions while upholding the rest of OWCP’s decision.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.; 20 C.F.R. § 501.2(c).
• Outcome: Wage-loss and back-related medical benefit terminations affirmed; termination of left-foot medical benefits reversed.
• Key point: OWCP lacked a sufficient medical basis to end treatment for the accepted foot conditions.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.J., Appellant
)
)
and ) Docket No. 15-0485
) Issued: April 22, 2016
DEPARTMENT OF THE AIR FORCE,
)
SHEPPARD AIR FORCE BASE, TX, Employer
)
__________ )

Appearances: Case Submitted on the Record
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On December 30, 2014 appellant, through counsel, filed a timely appeal of an August 11, 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 to consider the merits of the case.

ISSUE

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits effective July 27, 2014.

On appeal counsel argues that the impartial medical examiner was not properly selected, or, in the alternative, argues that the impartial medical examiner’s report was not sufficiently rationalized to meet OWCP’s burden to terminate appellant’s wage-loss and medical benefits.

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On September 27, 2006 appellant, then a 51-year-old secretary, filed a traumatic injury claim (Form CA-1) alleging that she injured her left foot when she twisted it while coming down stairs at the employing establishment on September 21, 2006. She received continuation of pay and OWCP had authorized medical benefits. Appellant returned to work full time on October 2, 2006.

On January 23, 2007 OWCP determined that the case would have to be formally adjudicated as the medical benefits had exceeded $1,500.00. By decision dated February 12, 2007, it accepted the claim for closed fracture of the cuboid bone of the left foot and later also accepted stress fracture of the third metatarsal of the left foot.

In a note dated June 27, 2008, appellant’s attending physician, Dr. Paul J. Parkey, a family practitioner, found that appellant walked slowly with an abnormal gait which was causing her back pain. He noted that she could work eight hours a day with restrictions of up to two hours of standing and walking with no climbing stairs. Dr. Parkey also limited appellant’s lifting to 10 pounds.

On June 19, 2009, however, Dr. Parkey found that appellant had increased left foot pain which had progressed into her ankle and her lower back. He diagnosed left foot pain and osteoarthritis and noted that “[appellant] is off of work until undetermined.” Appellant stopped work on July 13, 2009. She filed claims for wage-loss compensation (Forms CA-7) commencing July 13, 2009. Appellant was placed on the supplemental disability rolls from July 13 through August 3, 2009 until she was placed on the periodic rolls.

On August 21, 2009 appellant was referred to a rehabilitation nurse. However, due to her failure to cooperate with the nurse, appellant was referred for a second opinion examination with Dr. Farooq Selod, a Board-certified orthopedic surgeon. In his May 20, 2010 report, Dr. Selod found appellant able to return to full-time work. OWCP referred Dr. Selod’s report to appellant’s treating physician, Dr. Parkey. In his June 24, 2009 report, Dr. Parkey disagreed with Dr. Selod and found appellant totally disabled for work.

OWCP referred appellant to Dr. Dale R. Allen, Board-certified in orthopedic surgery, for an independent medical examination to resolve the conflict in opinion as to whether appellant could return to work. Dr. Allen found appellant able to return to her date-of-injury position as far as her accepted conditions were involved. He was not sure about whether she could return to work under her other nonwork-related conditions. Appellant returned to work on September 13, 2010.2

Appellant’s physician requested that OWCP accept an additional lumbar condition as a consequence of the accepted left foot condition. Following a review of the record by an OWCP

2
Appellant had filed for a schedule award and OWCP granted appellant a schedule award for seven percent impairment of her left lower extremity as a result of her left foot condition on November 16, 2010. The period of the award ran from September 18, 2010 to February 6, 2011.

2 medical adviser, on January 11, 2011 OWCP expanded the claim to include the additional condition of temporary aggravation of lumbar sprain as consequence of her left foot condition.

On February 23, 2011 appellant claimed a recurrence of disability for the period starting July 13, 2009. She alleged that she had developed chronic pain in her neck, foot, leg, and back as well as numbness in her hands due to her September 21, 2006 employment injury. OWCP advised appellant that the claim for recurrence had not been properly filed and it would not be considered.

The employing establishment on March 16, 2011 controverted this claim for recurrence as the second opinion physician had found on May 20, 2010 that appellant was able to return to a full eight-hour work shift with no restrictions yet appellant did not return to work until September 13, 2010. It noted that, since returning to work, appellant had used 6 hours of annual leave and 23 hours of sick leave from September 13 through October 1, 2010 and had been in a nonpay status since October 4, 2010. The employing establishment advised OWCP that it was in the process of removing appellant for failure to maintain a regular work schedule.

The Office of Personnel Management (OPM) approved appellant’s disability retirement on June 30, 2011 and appellant resigned from the employing establishment on November 15, 2011 for “personal reasons.”

On December 12, 2011 appellant filed a second claim for recurrence of disability for the period beginning on December 15, 2010 again alleging that she had developed chronic pain in her neck, foot, leg, and back as well as numbness in her hands.

By decision dated April 19, 2012, OWCP denied her claim for recurrence of disability as the medical evidence failed to establish disability related to her accepted conditions.

Appellant requested reconsideration on November 2, 2012 and by decision dated February 5, 2013, OWCP reversed the April 19, 2912 decision finding that OWCP had failed to address whether the newly accepted condition of temporary aggravation of her lumbar spine had caused any disability. OWCP directed appellant to file claims for compensation (Forms CA-7) for any wage loss due to the accepted conditions and to advise OWCP when payment for the OPM disability retirement benefits began. It advised appellant’s counsel that a second opinion examination would be scheduled.

A claim for compensation (Form CA-7) was filed by appellant’s counsel on February 12, 2013, for the period December 15, 2010 through February 11, 2013.

Appellant submitted a March 8, 2013 report from Dr. Parkey. Dr. Parkey examined appellant due to pain and swelling in her left foot as well as low back pain. He found tenderness in the lumbar area with muscle spasm bilaterally and diagnosed low back syndrome. Dr. Parkey noted that appellant’s left foot demonstrated dorsal tenderness with swelling and restricted range of motion. He diagnosed neuropathic pain and left foot pain.

Dr. John W. Ellis, a Board-certified family practitioner, examined appellant on March 18, 2013 and noted her history of injury on September 21, 2006. He noted her ongoing complaints of neck pain, low back pain, bilateral elbow and left wrist pain, hand numbness, and pain in the

3 right lateral leg, both knees, and left foot. Dr. Ellis provided diagnoses of fracture left cuboid, strain, internal derangement, and traumatic arthritis of the left ankle, antalgic gait causing abnormal strains and stresses on the iliolumbar and sacroiliac ligaments in the back, deranged disc in the back with right S1 and left L5, S1 nerve root impingement with lumbosacral plexus impingement bilaterally, reflex spasm into the neck and shoulders causing brachial plexus and axillary plexus impingement, bilateral cubital tunnel syndrome, radial tunnel syndrome carpal tunnel syndrome, Guyon’s canal syndrome and de Quervain’s stenosing tenosynovitis as well as bunion on the left medial first metatarsal head. He opined that all the diagnosed conditions arose from appellant’s employment and that appellant would require continued medical maintenance for these conditions. As to remaining disability, he noted that appellant had retired on disability in December 2010.

Dr. Parkey examined appellant on June 7 and September 6, 2013 and again diagnosed neuropathic pain, left foot pain, and left foot injury. In a note dated September 26, 2013, he observed that she continued to experience residuals of her September 21, 2006 employment injury and was totally disabled. Dr. Parkey opined that appellant’s current conditions were caused by her original workplace injury of September 21, 2006.

Appellant elected to receive FECA benefits in lieu of OPM disability retirement, effective August 1, 2013. This date was later retroactively amended to December 15, 2010. She filed a claim for compensation (Form CA-7) for reimbursement of leave without pay for the period December 15, 2010 through May 16, 2013. The employing establishment controverted the CA-7 form stating that appellant resigned for personal reasons and was on disability retirement. It noted that appellant could not receive dual benefits from both OPM and OWCP and that after resigning she should not be eligible for FECA benefits.

OWCP referred appellant for a second opinion evaluation with Dr. James E. Butler, a Board-certified orthopedic surgeon, by letter dated September 5, 2013. He was asked to determine whether appellant could return to her date-of-injury position, whether the temporary aggravation of the lumbar sprain had resolved, and what other recommendations for medical treatment were warranted.

Dr. Armando Carro, a podiatrist, examined appellant on September 20, 2013 and found that x-rays demonstrated arthritis on the left with bony erosions consistent with chronic gouty arthritis as well as stress fractures on the third metatarsal shaft on the left. He prescribed a walker boot. On October 18, 2013 Dr. Carro diagnosed healing stress fracture and possible neuroma of the second intermetatarsal space exacerbated by appellant’s incident.

In a report dated October 17, 2013, Dr. Butler listed appellant’s history of injury as coming up and down stairs at work when she twisted her left foot and ankle causing a fracture of the cuboid bone and low back pain. Appellant reported pain in her head, neck, lower back, mid- back, upper back, left wrist, left hand and fingers, left knee, left ankle, left leg, left foot, right wrist, right hand, right hip, right knee, right leg, and right foot. She also had reported numbness in her hands and feet as well as burning, pins and needles, weakness, and hypersensitivity.

On examination, Dr. Butler observed that appellant’s deep tendon reflexes were hyperactive with more than one contraction per tap. Her spine was tender at L4-S1 with no

4 muscle spasms or guarding. Appellant’s lumbar range of motion was painful, but within normal limits. He found limited range of motion of the left foot and noted that appellant’s sensation testing was normal along the peripheral nerves. Dr. Butler found normal muscle strength in the lower extremities. He diagnosed left foot fracture, lumbago, and left ankle sprain. Dr. Butler reviewed appellant’s x-rays and found no evidence of fracture in the left foot. He noted that her left ankle sprain had resolved, but that she had some left foot tenderness and restricted motion. Dr. Butler found an antalgic limp secondary to weakness in her left foot muscles. He concluded that appellant could returned to full duty as a secretary, including the occasional walking and standing required by her position. Dr. Butler opined that the temporary aggravation of appellant’s lumbar sprain had resolved with no significant functional loss or abnormalities.

Dr. Parkey was asked to review Dr. Butler’s report. He examined appellant on November 22, 2013 and found tenderness in the lumbar area and muscle spasms on the left. Dr. Parkey diagnosed low back syndrome. He also found that appellant’s left foot was tender with restricted range of motion and a limp. Dr. Parkey diagnosed neuropathic pain, left foot pain, and left foot injury. He disagreed with Dr. Butler’s findings. Dr. Parkey determined that appellant was unable to return to work as she had a definite gait disturbance. He reported, “The symptoms in her lower back have been accentuated by the left foot issues. I do not believe this patient will be able to return to her previous employment at this time because of the lower back and left foot problems which extend back to 2006 without any improvement.”

Based on appellant’s election of FECA benefits, appellant was returned to the periodic rolls on March 7, 2014 effective January 1, 2014, following verification from OPM that disability retirement benefits had been suspended.

OWCP determined a conflict in medical opinion existed between Dr. Parkey, who found appellant could not work, and Dr. Butler, who found appellant capable of returning to her work full time. To resolve the conflict as to appellant’s work capacity, she was referred for an independent medical examination.

On April 28, 2014 OWCP utilized an ME023 -- Appointment Schedule Notification -- to refer appellant for a referee examination with Dr. Robert Holladay, a Board-certified orthopedic surgeon. The bypass history report indicates that there were two physicians bypassed in appellant’s initial zip code search because the physicians had declined to see workers’ compensation patients. OWCP bypassed an additional 29 physicians for various reasons including the refusal to accepted workers’ compensation patients, no telephone listing, the requirement of medical prior to scheduling, the wrong specialty, and no longer traveling to the listed location. The record also includes a screen capture of Dr. Holladay’s selection.

OWCP referred appellant for an impartial medical examination with Dr. Holladay on April 30, 2014. It asked that he address whether appellant’s temporary aggravation of the lumbar sprain had resolved and whether she could work eight hours a day. In a report dated June 4, 2014, Dr. Holladay noted appellant’s history of walking up and down stairs and hearing a cracking sound in her left foot. He reviewed the medical history and examined her lumbar spine and lower extremities. Dr. Holladay found generalized tenderness with no muscle spasm in the lumbosacral spine. He reported normal muscle strength and sensation in both lower extremities. In regard to appellant’s left foot, Dr. Holladay found tenderness with arthritic ridging between

5 the metatarsal bones. He observed that she walked without a limp. Dr. Holladay diagnosed fracture of the left heel, sprain of the left ankle, fracture of the third metatarsal, and aggravation of the lumbar spine. He concluded that appellant’s temporary aggravation of the lumbar spine had resolved within three to four months and that she was capable of working for eight hours a day in her regular job with no restrictions. Lastly, Dr. Holladay opined that it was not medically likely or credible for her to have ongoing chronic low back pain due to an aggravation from eight years ago.

OWCP proposed to terminate appellant’s wage-loss compensation benefits on June 18, 2014 based on Dr. Holladay’s report. It afforded her 30 days to respond with additional evidence or argument in opposition to the proposed termination of benefits.

In a report dated June 5, 2014, Dr. Ellis described appellant’s employment injury and noted that due to her abnormal gait she developed back pain. He described her current symptoms and reviewed her medical treatment. Dr. Ellis found tightness in the cervical and shoulder girdle muscles with decreased range of motion of the neck and observed that gentle pressure on the trapezius muscles reproduced tingling down her upper extremities. He found Tinel’s sign at the elbows and wrists bilaterally. Dr. Ellis found decreased grip strength in both hands and decreased sensation to light touch along the median and ulnar nerve distributions in both hands. He also found tenderness and tightness of the lumbar muscles and stated that gentle pressure reproduced tingling in the back of the thighs and hips. Dr. Ellis noted that appellant had crepitation and pain in her knees and that appellant’s left ankle demonstrated hypertrophy and crepitation with a marked limp causing abnormal biomechanical stress on the knees, hips, back, and upper back. He found significant decreased sensation to monofilament testing and two-point discrimination along the L5 and S1 spinal nerves. Dr. Ellis noted that appellant’s reflexes were absent in the biceps, wrists, knees, and ankles. He listed her accepted conditions and included strain, internal derangement, and traumatic arthritis of the left ankle.

Dr. Ellis opined that appellant’s antalgic gait caused additional consequential conditions including abnormal strains and stresses on the iliolumbar and sacroiliac ligaments in the back, deranged discs in the back, bilateral L5 and S1 spinal nerve root impingement, reflex spasm into the neck and shoulders causing brachial plexus impingement, brachial plexus impingement aggravated hypertrophy of the tendons in the elbows and wrists, bilateral cubital tunnel syndrome, bilateral radial tunnel syndrome, bilateral carpal tunnel syndrome, and bilateral Guyon’s canal syndrome. In support of his diagnoses, Dr. Ellis opined that it was “more probable than not” that appellant’s conditions arose from her employment. He concluded that she was totally disabled.

Counsel responded to the proposed termination on July 15, 2014 and argued that Dr. Holladay was not properly selected as the impartial medical examiner, that there was no conflict of medical opinion evidence on the issue of continuing residuals requiring referral to Dr. Holladay, that his report was based on an incomplete review of the medical history, and that his report was not sufficiently well reasoned to resolve the conflict and constitute the weight of the medical opinion evidence.

By decision dated August 11, 2014, OWCP terminated appellant’s medical benefits and wage-loss compensation effective July 27, 2014. It found that Dr. Holladay’s report represented

6 the weight of the medical evidence and established that appellant’s medical residuals and disability due to her accepted conditions had ceased.

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or lessened in order to justify termination or modification of compensation benefits.3 After it has determined that an employee has disability causally related to his or her federal employment, OWCP may not terminate compensation without establishing that the disability has ceased or that it is no longer related to the employment.4 Furthermore, the right to medical benefits for an accepted condition is not limited to the period of entitlement for disability.5 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.6

When there are opposing reports of virtually equal weight and rationale, the case will be referred to an impartial medical specialist pursuant to section 8123(a) of FECA which 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 and resolve the conflict of medical evidence.7 This is called a referee examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior connection with the case.8 The opinion of such specialist, if sufficiently well- rationalized and based on a proper factual background, must be given special weight.9

ANALYSIS

OWCP accepted that appellant’s September 21, 2006 claim for closed fracture of the cuboid bone of the left foot, stress fracture of the third metatarsal of the left foot, and temporary aggravation of lumbar sprain as consequence of her left foot condition. Appellant was placed on the periodic rolls.

Appellant’s attending physicians, Drs. Ellis, Carro, and Parkey, continued to support appellant’s need for medical treatment for both her lumbar and left foot conditions and her resultant disability for work. OWCP referred appellant for a second opinion evaluation with Dr. Butler, who found that appellant could return to her regular-duty position and that her temporary aggravation of lumbar sprain had resolved with no significant functional loss or

3
Mohamed Yunis, 42 ECAB 325, 334 (1991).
4
Id.
5
Furman G. Peake, 41 ECAB 361, 364 (1990).
6
Id.
7
5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).
8
R.C., 58 ECAB 238 (2006).
9
Nathan L. Harrell, 41 ECAB 401, 407 (1990).

7 abnormalities. Dr. Butler also found that appellant’s left ankle sprain had resolved, but that appellant had some left foot tenderness and restricted motion, supporting residuals of her accepted left foot conditions. He also reported that antalgic limp secondary to weakness in her left foot muscles. Due to the disagreement between appellant’s physicians and Dr. Butler regarding the extent of appellant’s disability and the resolution of her lumbar strain, OWCP found a conflict of medical opinion evidence requiring referral to an impartial medical examiner. Contrary to the arguments of counsel, the Board agrees.

OWCP referred appellant to Dr. Holladay, the independent medical adviser, to address the conflict of medical opinion evidence. The record includes an ME023 as well as bypass records and reasons for physicians excluded prior to the selection of Dr. Holladay. On appeal and before OWCP, appellant’s counsel argued that Dr. Holladay was not properly selected to serve as the impartial medical examiner. To select an impartial medical examiner, OWCP uses a Medical Management Application (MMA) with a strict rotational feature.10 In this case, OWCP properly utilized the MMA, provided explanations as to why additional physicians selected were bypassed, and included a screen capture of Dr. Holladay’s selection. The Board finds that there is sufficient evidence to document that Dr. Holladay was selected through the appropriate rotational system to ensure against bias and prejudice.11

The Board further finds that Dr. Holladay’s report is entitled to the special weight of the medical opinion evidence and establishes that appellant’s employment-related condition of temporary aggravation of lumbar sprain and any disability from her accepted conditions has resolved. In his June 4, 2014 report, Dr. Holladay provided an accurate history of injury, noting appellant’s history of walking up and down stairs and hearing a cracking sound in her left foot.

Dr. Holladay reviewed the medical history and provided his results on physical examination of appellant’s lumbar spine and lower extremities. He found generalized tenderness with no muscle spasm in the lumbosacral spine. Dr. Holladay reported normal muscle strength and sensation in both lower extremities. He reported no objective findings in regard to appellant’s accepted aggravation of a lumbar strain.

In regard to appellant’s left foot, Dr. Holladay found tenderness with arthritic ridging between the metatarsal bones. He noted that she walked without a limp and reported no other positive findings. Dr. Holladay diagnosed fracture of the left heel, sprain of the left ankle, fracture of the third metatarsal and aggravation of the lumbar spine. He noted that appellant’s temporary aggravation of the lumbar spine had resolved. Dr. Holladay reasoned that it was not medically likely or credible for her to have ongoing chronic low back pain due to an aggravation from eight years ago. He found that appellant could work eight hours a day at her regular job with no restrictions. The Board finds that Dr. Holladay’s determinations that appellant’s lumbar spine aggravation had ceased and that she could return to work without restrictions are sufficiently detailed supported to constitute the weight of the medical evidence. Dr. Holladay

10
H.W., Docket No. 14-1319 (issued February 3, 2015); Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.6 (May 2013). 11 B.B., Docket No. 14-1575 (issued February 18, 2015).

8 clearly opined that appellant could return to work and based his opinion on the lack of objective findings during his examination.

However, OWCP did not request that Dr. Holladay address whether appellant’s left foot conditions had resolved without residuals or the need for further medical treatment due to this condition. Dr. Butler, the second opinion physician, as well as appellant’s attending physicians, continued to report findings and to prescribe treatment for these conditions. Dr. Holladay did not specifically address whether appellant had any continuing medical residuals as a result of her accepted left foot conditions and he noted findings of arthritis in her left foot. The Board finds that Dr. Holladay’s report is insufficient to support OWCP’s determination that all of appellant’s employment-related conditions had resolved without residuals or disability and that, therefore, OWCP has not met its burden of proof to terminate appellant’s medical benefits for her left foot conditions.

Following Dr. Holladay’s report, appellant submitted an additional report from Dr. Ellis.
On June 5, 2014 Dr. Ellis described appellant’s employment injury and noted that due to her abnormal gait she had developed back pain. He described appellant’s current symptoms in the upper extremities and also found tenderness and tightness of the lumbar muscles and observed that gentle pressure reproduced tingling in the back of the thighs and hips. Dr. Ellis noted that appellant’s left ankle demonstrated hypertrophy and crepitation with a marked limp causing abnormal biomechanical stress on the knees, hips, back, and upper back. He found significant decreased sensation to monofilament testing and two-point discrimination along the L5 and S1 spinal nerves. Dr. Ellis noted that appellant’s reflexes were absent in the biceps, wrists, knees and ankles. He listed appellant’s accepted conditions and included strain, internal derangement and traumatic arthritis of the left ankle. Dr. Ellis opined that appellant’s antalgic gait caused additional consequential conditions. In support of his diagnoses, he opined that it was “more probable than not” that appellant’s conditions arose from her employment. Dr. Ellis concluded that appellant was totally disabled. He did not, however, provide detailed findings with regard to the accepted conditions including continuing objective symptoms other than hypertrophy, crepitation, and antalgic gait in the left foot. Dr. Ellis did not provide any medical reasoning in support of his conclusions of additional consequential injuries and merely concluded that appellant’s extensive diagnosed conditions result from her employment. Furthermore, as he was on one side of the conflict that Dr. Holladay had resolved, his additional report is insufficient to overcome the weight accorded Dr. Holladay’s report as the impartial medical specialist or to create a new conflict on the issues addressed by Dr. Holladay.12

The Board finds that Dr. Holladay was not properly designated as an impartial medical examiner on the issue of whether appellant had continuing medical residuals due to her left foot conditions. At the time of OWCP’s referral to Dr. Holladay, there was no disagreement in the record regarding appellant’s ongoing left foot conditions and antalgic gait as a result of this condition. Dr. Holladay is not the impartial medical adviser in regard to this issue and as noted above, he did not mention whether appellant required additional medical treatment for her left foot conditions in his report. He has not resolved this issue and his report is not entitled to

12
Dorothy Sidwell, 41 ECAB 857, 874 (1990).

9 special weight in this regard. OWCP has not met its burden of proof to terminate appellant’s medical benefits in regard to her left foot conditions as found in the July 27, 2014 decision.

The Board finds, however, that OWCP did met its burden of proof to terminate appellant’s wage-loss and medical benefits effective July 27, 2014 due to her temporary aggravation of lumbar sprain. However, the Board finds that OWCP has not met its burden of proof to terminate appellant’s medical benefits due to her left foot condition.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

OWCP met its burden of proof to terminate appellant’s wage loss due to both her left foot and lumbar sprain conditions and to medical benefits due to her lumbar sprain effective July 27, 2014. It has not met its burden of proof to terminate her medical benefits due to her accepted left foot conditions.

ORDER

IT IS HEREBY ORDERED THAT the August 11, 2014 decision of the Office of Workers’ Compensation Programs is affirmed in part and reversed in part consistent with this decision of the Board.13

Issued: April 22, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13
James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the Board effective November 16, 2015.

10