N.M. and Department of Veterans Affairs, Oklahoma City Medical Center, Oklahoma City, OK (Board decision, March 2, 2016)

ECAB final decision. The Board affirmed OWCP’s January 28 and March 2, 2015 decisions denying a claimed disability period and terminating wage-loss and medical 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).

Plain-English summary

N.M., a Veterans Affairs nursing assistant, sought additional compensation after accepted abdominal and lower back sprains from moving a patient in a wheelchair. OWCP denied her claim for total disability from November 6, 2013 through August 11, 2014 and later terminated her wage-loss and medical benefits. The Board found that conflicting physician opinions justified referral to an impartial orthopedic surgeon. It gave his report special weight because his examination and review of the record supported a finding that the accepted sprain had resolved without ongoing disability or treatment needs. The Board upheld both OWCP decisions.

Decision snapshot

• Authority: Impartial medical examination under 5 U.S.C. § 8123(a); FECA disability definition at 20 C.F.R. § 10.5(f).
• Outcome: January 28, 2015 disability denial and March 2, 2015 benefit termination affirmed.
• Key point: The impartial specialist’s supported opinion outweighed the treating physician’s continuing disability opinion.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.M., Appellant
)
)
and ) Docket No. 15-1553
) Issued: March 2, 2016
DEPARTMENT OF VETERANS AFFAIRS,
)
OKLAHOMA CITY MEDICAL CENTER,
)
Oklahoma City, OK, Employer
)
__________ )

Appearances: Case Submitted on the Record
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 13, 2015 appellant, through counsel, filed a timely appeal of January 28 and March 2, 2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish disability for the period November 6, 2013 through August 11, 2014 due to her accepted employment injuries; and (2) whether OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits effective March 2, 2015.

On appeal, counsel argued that the weight of the medical evidence rested with appellant’s attending physician, that there was no conflict of medical opinion, that the impartial medical

1
5 U.S.C. § 8101 et seq. examiner improperly opined that appellant exhibited symptom magnification, and that the surveillance video was improperly utilized by OWCP and the impartial medical examiner.

FACTUAL HISTORY

On August 20, 2013 appellant, then a 25-year-old nursing assistant, filed a claim for traumatic injury (Form CA-1) alleging that she sustained pain in her stomach on August 13, 2013 while pushing a patient in a wheelchair. She reported experiencing a ripping sensation in her lower abdomen.

Dr. J. Arden Blough, a family practitioner, examined appellant on August 21, 2013 and diagnosed right inguinal hernia, lower abdominal sprain/strain, and lumbar spine sprain and strain. He described her history of injury as pushing a wheelchair containing an oversized patient and experiencing a ripping pain in her abdomen. Dr. Blough opined that appellant’s diagnosed conditions were the result of her work incident. He found that she was totally disabled from August 21 through September 8, 2013. On September 18, 2013 Dr. Blough found that appellant was totally disabled through October 16, 2013.

In a note dated September 25, 2013, Dr. Blough again made the preliminary diagnosis of right inguinal hernia and opined that it was not safe for appellant to work. He concluded that the August 13, 2013 injury was the major cause of injury to her lumbar spine, abdomen, and pelvis. Appellant underwent an abdominal computerized tomography (CT) scan on October 2, 2013 which was interpreted as unremarkable with no anterior wall hernia. An October 1, 2013 lumbar magnetic resonance imaging (MRI) scan showed a small posterior annular tear at L4-5 with facet arthropathy and a broad-based disc bulge.

In a decision dated October 31, 2013, OWCP denied appellant’s traumatic injury claim finding that she failed to establish that the incident occurred as alleged.

On November 22, 2013 appellant requested reconsideration. She submitted a factual statement dated October 8, 2013 and alleged on August 13, 2013 she was pushing an oversized patient in a wheelchair. Appellant noted that the wheelchair had been dismantled so that the patient could fit on the chair. She asserted that she could use only a one hand bar to move the wheelchair and that, as she pulled backward to enter the elevator, she felt a ripping pain down her side and back. Appellant did not immediately stop work, but later sought medical attention.

Dr. Blough examined appellant on October 4, 2013 and noted her MRI scan findings. He found tenderness in the inguinal canal, decreased range of motion in the lumbar spine with tenderness to palpation, loss of sensation in the lower extremities, and weakness bilaterally in the lower extremities worse on the right. Dr. Blough repeated his previous diagnoses and conclusions.

By decision dated February 14, 2014, OWCP found that appellant had established that the employment incident occurred as alleged, but concluded that she had not submitted sufficient medical opinion evidence to establish a diagnosed condition. On March 5, 2014 it rescinded the February 14, 2014 decision and again denied her claim finding that she failed to establish an injury resulting from the accepted employment incident.

2
 Counsel requested reconsideration on appellant’s behalf through a letter and form dated May 16, 2014. He argued that Dr. Blough’s reports were sufficient to establish that her diagnosed conditions were caused by her employment incident.

By decision dated August 7, 2014, OWCP accepted appellant’s claim for sprain of the lower abdomen and a lumbar sprain. It explained that her claim for a right inguinal hernia was not accepted as the CT scan did not support this diagnosis.

Appellant filed a claim for compensation (Form CA-7) on August 11, 2014 and requested wage-loss compensation from August 21, 2013 through August 11, 2014. The employing establishment controverted her claim for compensation on August 14, 2014, as appellant had been removed from employment for cause effective November 29, 2014. It further stated that she did not report for duty on October 25 and November 1, 2013 as directed. The employing establishment noted that appellant received continuation of pay from September 4 through 30, 2013. It provided a November 19, 2013 letter which advised her that she was being discharged during her probationary period as she had failed to report to duty as directed and did not request approval for leave from November 4 through 15, 2013. The employing establishment charged appellant with 80 hours of absence without leave and concluded that her conduct was not within the standards expected.

Dr. Blough completed a note on August 18, 2014 and opined that appellant was totally disabled from August 21, 2013 through September 16, 2014. He attributed this disability to “exacerbation of work-related injuries.”

In a letter dated August 22, 2014, OWCP informed appellant that the medical evidence submitted was insufficient to support her claimed period of wage-loss compensation. It allowed 30 days for a narrative medical report addressing her claimed periods of disability.

Dr. Blough completed a report on August 13, 2014. He described appellant’s history of injury on August 13, 2013 and reviewed the CT and MRI scan reports. Dr. Blough noted that he had recommended evaluation by a spine specialist, but that as her claim was denied and she was terminated by the employing establishment, she had been unable to undergo treatment since October 4, 2013. He found that appellant had continued pain in her lumbar spine and lower abdomen. Dr. Blough found lumbar spine loss of range of motion, pain, and weakness exacerbated by lifting, bending, twisting, sitting, or standing. He diagnosed lower abdominal sprain/strain, lumbar sprain with trigger point formation, and posterior annual tear at L4-5 and broad-based disc bulge at L4-5 with mild facet arthropathy at L5-S1. Dr. Blough opined that appellant was totally disabled since August 13, 2013 due to the accepted employment injury. He recommended further medical treatment.

OWCP authorized compensation benefits from August 21 through September 30, 2013 and from October 1 through November 5, 2013.

On September 10, 2014 OWCP referred appellant for a second opinion evaluation with Dr. Dennis Foster, a Board-certified orthopedic surgeon. Dr. Foster completed a report on September 26, 2014. He described appellant’s employment duties as a nursing assistant as well as her August 13, 2013 employment incident. Dr. Foster noted her complaints of severe pain in

3 the back and pelvic region. He also noted that appellant reported pain radiating into her right leg with weakness. Dr. Foster found that she walked with a “very dramatic gait” with her right leg completely stiff and “hobbling down the hall in a very exaggerated fashion.” On examination he found no spasm in the musculature of the lumbar back, symmetric deep tendon reflexes, and poor attempts at knee flexion or extension bilaterally on manual muscle testing. Dr. Foster reported that appellant complained of pain throughout the examination. He reviewed her October 1, 2013 MRI scan and found “a very minute brightening posteriorly at L4-5 possibly representing an annular tear.” Dr. Foster did not find disc protrusion or herniation. He opined that appellant was grossly exaggerating her present condition. Dr. Foster recommended an additional MRI scan to clarify whether appellant had an annular tear and opined that this condition, if present, would be attributable to the August 13, 2013 work injury. He noted, “[Appellant] may or may not have had some low back pain, however, her physical findings are grossly exaggerated and in my opinion are unreliable due to her manipulation of the findings themselves.” Dr. Foster opined, “I do believe [that appellant] is capable of working. I do believe that her symptomatology is grossly exaggerated from a subjective stand point.” He indicated that appellant could work eight hours a day with restrictions.

In a letter dated October 3, 2014, OWCP provided Dr. Blough with a copy of Dr. Foster’s report and requested that he opine whether appellant was capable of working eight hours a day with restrictions. It also requested that she undergo an additional MRI scan.

Dr. Foster completed a supplemental report on October 14, 2014 and opined that appellant was capable of working eight hours a day with his previously provided restrictions beginning on November 5, 2013.

Dr. Blough responded on October 22, 2014 and disagreed with Dr. Foster’s findings and opinions. He noted that he had examined appellant on multiple occasions and that the results of her physical examination were consistent. Dr. Blough found loss of range of motion, pain, and weakness in her lumbar spine. He reported a positive straight leg raising test and loss of sensation to monofilament testing. Dr. Blough reviewed both MRI scans and opined that appellant’s condition had deteriorated such that she was limited in her mobility and required narcotic pain medication. He contended that this medication caused “somnolence and, therefore, [appellant] would pose a potential danger to herself or others, if she were to return to work….” Dr. Blough asserted that appellant was not capable of working eight hours a day and noted that he had scheduled a functional capacity evaluation. He opined that she was totally disabled and recommended further medical treatment.

Appellant underwent a lumbar MRI scan on October 17, 2014 which demonstrated minimal annular disc bulges at L2-3, L3-4, and L5-S1. At L4-5 the MRI scan showed mild diffuse annular disc bulge with slight effacement of the ventral thecal sac, mild bilateral facet joint hypertrophy, but no significant central canal narrowing.

The employing establishment provided OWCP video surveillance on October 27, 2014.
It alleged that the video included appellant lifting and carrying “a decent sized dog” as well as her toddler on different occasions. The video included activities on September 11, 12, 13 and 14, 2013. Appellant is recorded walking, standing, bending, entering and exiting vehicles, running a few steps, leading her toddler by the hand, lifting and carrying a small dog, as well as,

4 swinging and lifting her toddler. OWCP notified her that the employing establishment had submitted a surveillance video and directed her to provide a written request for a copy of this video. It also informed appellant that an impartial medical examination was being scheduled.

Appellant had a functional capacity evaluation on October 28, 2014.

In a letter dated November 18, 2014, OWCP informed appellant of her scheduled impartial medical examination with Dr. Sam Framjee, a Board-certified orthopedic surgeon. It referred her, a statement of accepted facts, the surveillance DVD, and a list of questions to Dr. Framjee. In a report dated December 12, 2014, Dr. Framjee described appellant’s August 13, 2013 employment incident and reviewed her medical treatment. He found that she walked with a hysterical gait pattern and an equinus gait on the left side with no foot drop. Dr. Framjee reported that appellant was jumpy to superficial touch in the lumbar spine. He found negative straight leg raising and inconsistent hypoesthesia in the right lower extremity. Dr. Framjee reported breakaway weakness in both legs more on the right. He noted that appellant’s October 17, 2014 MRI scan noted an impression of mild annular disc bulging at multiple levels with no focal disc protrusion or neural impingement. Dr. Framjee concluded, “I am unable to substantiate the patient’s symptoms to my physical findings. The clinical picture is indicative of symptom magnification.” He noted that he saw no evidence of an identifiable injury to appellant’s lumbar spine due to the August 13, 2013 work incident. Dr. Framjee opined that she had a sprain of the lumbar spine on August 13, 2013 that this condition was resolved and that her current symptoms were suggestive of symptom magnification. He indicated that appellant’s temporary total disability due to lumbar strain should have ceased within two or three weeks after the August 13, 2013 employment injury. Dr. Framjee concluded that she had no physical limitations due to her work-related conditions and could gradually return to full-duty work within one month.

In a supplemental report dated December 12, 2014, Dr. Framjee indicated that he reviewed the surveillance video. He found that this demonstrated appellant walking independently without any equinus gait and performing activities of daily living normally. Dr. Framjee concluded that the activities demonstrated that she could perform her normal activities of daily living without any difficulty.

OWCP provided appellant with a notice of proposed termination on January 14, 2015. It informed her that Dr. Framjee’s December 12, 2014 reports were entitled to the weight of the medical opinion evidence and established that her accepted conditions and disability had resolved. OWCP allowed 30 days for a response.

By decision dated January 28, 2015, OWCP denied appellant’s claim for compensation for the period November 6, 2013 through August 11, 2014. It found that Dr. Framjee’s reports were entitled to the weight of the medical opinion evidence and established that her accepted lumbar sprain had resolved within three weeks of the incident of August 13, 2013.

Dr. Blough completed a report on January 26, 2015 and opined that appellant continued to have lumbar spine pain with radicular symptoms including numbness and tingling radiating into both legs. He diagnosed lumbar sprain/strain, lumbar radiculopathy, and lumbar annual tear at L4-5. Dr. Blough further opined that appellant was totally disabled and required further

5 invasive treatment including lumbar discography. He asserted that the excessive force required by her to push a large heavy patient in a wheelchair on August 13, 2013 caused a lumbar annual tear at L4-5 and that an annual tear caused pain varying from moderate to severe. Dr. Blough concluded that appellant’s injuries arose out of her work-related accident.

On January 28, 2015 Dr. Blough responded to the notice of proposed termination and disagreed with Dr. Framjee. He opined that appellant sustained not only a lumbar sprain, but disc bulges at multiple levels and an annular fissure at L4-5. Dr. Blough further argued that she had provided consistent findings on the nine occasions that he examined her and that she had not demonstrated any behaviors consistent with symptom magnification. He reported decreased range of motion in the lumbar spine, loss of strength, diminished reflexes, and loss of sensation in the bilateral lower extremities. Dr. Blough also found exacerbation of symptoms with lifting, bending, twisting, sitting, or standing as well as positive straight leg raising. He reviewed appellant’s functional capacity evaluation and noted that she reported right lower extremity numbness and weakness and demonstrated consistent objective findings of weakness of the right lower extremity such that she was very limited in her physical capabilities. Dr. Blough opined that she remained totally disabled due to her August 13, 2013 employment injury.

By decision dated March 2, 2015, OWCP terminated appellant’s wage-loss and medical benefits effective that date. It found that the weight of the medical opinion evidence rested with Dr. Framjee.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA2 has the burden to establish the essential elements of his or her claim, including that any disability or specific condition for which compensation is claimed is causally related to the employment injury.3 The term disability is defined as the incapacity because of an employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning capacity.4

Whether a particular injury causes an employee to be disabled for employment and the duration of that disability are medical issues which must be proved by a preponderance of the reliable, probative, and substantial medical evidence.5 Findings on examination are generally needed to support a physician’s opinion that an employee is disabled for work. When a physician’s statements regarding an employee’s ability to work consist only of repetition of the employee’s complaints that she hurt too much to work, without objective findings of disability being shown, the physician has not presented a medical opinion on the issue of disability or a

2
5 U.S.C. §§ 8101-8193.
3
G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
4
20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no loss of wage-earning capacity).
5
See Fereidoon Kharabi, 52 ECAB 291 (2001).

6 basis for payment of compensation.6 The Board will not require OWCP to pay compensation for disability in the absence of any medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially allow employees to self-certify their disability and entitlement to compensation.7

Causal relationship is a medical issue and the medical evidence required to establish causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical evidence which includes a physician’s detailed medical 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.9 Neither the fact that a disease or condition manifests itself during a period of employment nor the belief that the disease or condition was caused or aggravated by employment factors or incidents is sufficient to establish causal relationship.10

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.11 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.12

In situations where there are opposing medical reports of virtually equal weight and rationale, and the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper factual background, must be given special weight.13

6
Id.
7
Id.
8
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
9
Leslie C. Moore, 52 ECAB 132 (2000).
10
Dennis M. Mascarenas, 49 ECAB 215 (1997).
11
Supra note 2, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).
12
R.C., 58 ECAB 238 (2006).
13
Nathan L. Harrell, 41 ECAB 401, 407 (1990).

7
 ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish that she was totally disabled for the period November 6, 2013 through August 11, 2014 due to her accepted employment injuries.

Appellant’s attending physician, Dr. Blough, supported appellant’s total disability for work in reports dated from August 21 to October 4, 2013. On August 7, 2014 OWCP accepted her claim for sprain of the lower abdomen and sprain of the lumbar back. Appellant filed a claim for compensation on August 11, 2014 for the period August 21, 2013 through August 11, 2014. OWCP authorized compensation benefits from August 21 through September 30, 2013 and from October 1 through November 5, 2013.

In support of disability on and after November 5, 2013, Dr. Blough completed a note on August 18, 2014 and opined that appellant was totally disabled from August 21, 2013 through September 16, 2014 due to “exacerbation of work-related injuries.”

OWCP referred appellant for a second opinion examination with Dr. Foster, who completed a second opinion report on September 26, 2014. Dr. Foster opined that she was grossly exaggerating her present condition and opined that she was capable of working eight hours a day with restrictions. In his supplemental report dated October 14, 2014, he opined that appellant was capable of working eight hours a day with restrictions beginning on November 5, 2013.

On October 22, 2014 Dr. Blough disagreed with Dr. Foster and again opined that appellant was totally disabled. Due to this disagreement between appellant’s physician and a physician for OWCP, the Board finds that, contrary to counsel arguments on appeal, OWCP properly determined that there was a conflict of medical opinion on the issue of the extent and periods of disability and properly referred appellant to Dr. Framjee to resolve this conflict, pursuant to 5 U.S.C. § 8123(a).

In his December 12, 2014 report, Dr. Framjee provided a history of injury and reviewed appellant’s medical treatment. On examination, he reported that she walked with a hysterical gait pattern and an equinus gait on the left side with no foot drop. Dr. Framjee found inconsistent hypoesthesia in the right leg as well as breakaway weakness in both lower extremities. He opined that appellant had a sprain of the lumbar spine on August 13, 2013, that this condition was resolved, and that her current symptoms were suggestive of symptom magnification. Dr. Framjee indicated that her temporary total disability due to lumbar strain should have ceased within two or three weeks after the August 13, 2013 employment injury.

In a supplemental report dated December 12, 2014, Dr. Framjee indicated that he reviewed the surveillance video. He found that this revealed appellant walking independently without any equinus gait and performing activities of daily living normally. Dr. Framjee concluded that the activities demonstrated that she could perform her normal activities of daily living without any difficulty.

8
 The Board finds that Dr. Framjee’s reports are entitled to the special weight of the medical evidence and do not support appellant’s claim for continuing disability on or after November 5, 2013. These reports were based on an accurate history of injury, provided detailed physical findings, and offered a clear explanation of the basis for finding that she was not totally disabled on or after November 5, 2013.

On appeal counsel argued that Dr. Framjee improperly opined that appellant exhibited symptom magnification and improperly utilized the surveillance video. The Board has held that, in certain circumstances, videotape evidence may be of value to a physician offering an opinion regarding a claimant’s medical condition. It may reflect on the patient’s reliability as a historian or on the actual ranges of motion, lifting, or other physical activities the claimant may perform. However, a videotape may be incorrect or misleading to a physician if there are errors, such as the identity of the individual recorded on the videotape or whether certain activities were facilitated by the use of medication. OWCP has the responsibility to make the claimant aware that it is providing videotape evidence to a medical expert. If the claimant requests a copy of the videotape, one should be made available and the employee given a reasonable opportunity to offer any comment or explanation regarding the accuracy of the recording.14 OWCP informed appellant of the surveillance video on October 31, 2014 and at the same time informed her that an impartial medical examination would be scheduled. It instructed her to request a copy of the video in writing in keeping with its procedures.15 Appellant, nor her counsel, have requested a copy of the surveillance video and there is no evidence of wrongdoing on the part of OWCP in regard to the video.16

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.

LEGAL PRECEDENT -- ISSUE 2

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.17 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.18 Furthermore, the right to medical benefits for an accepted condition is not limited to the period of entitlement for disability.19 To terminate

14
J.M., 58 ECAB 478 (2009).
15
OWCP Procedure Manual, Privacy Act, Chapter 1.400.4.d (November 2000) (defining a request as a written inquiry).
16
See D.B., Docket No. 14-0451 (issued August 12, 2014) (finding that counsel must request the video); J.C., Docket No. 14-1422 (issued March 16, 2015).
17
Mohamed Yunis, 42 ECAB 325, 334 (1991).
18
Id.
19
Furman G. Peake, 41 ECAB 361, 364 (1990).

9 authorization for medical treatment, OWCP must establish that appellant no longer has residuals of an employment-related condition which require further medical treatment.20

ANALYSIS -- ISSUE 2

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss and medical benefits effective March 2, 2015.

As previously described, there was a conflict of medical opinion evidence necessitating referral of appellant, by OWCP, to Dr. Framjee to resolve the issue of the degree and period of her employment-related disability. Dr. Framjee found in his December 12, 2014 report, that she walked with a hysterical gait pattern and an equinus gait on the left side with no foot drop. He found negative straight leg raising and inconsistent hypoesthesia in the right lower extremity. Dr. Framjee also reported breakaway weakness in both lower extremities more on the right. He reviewed appellant’s more recent MRI scan dated October 17, 2014 and found that it demonstrated mild annular disc bulging at multiple levels with no focal disc protrusion or neural impingement. Dr. Framjee concluded that she was demonstrating symptom magnification as he could not substantiate her symptoms based on her clinical examination. He diagnosed sprain of the lumbar spine as a result of the August 13, 2013 employment injury and opined that this condition was resolved, and that appellant’s current symptoms were suggestive of symptom magnification. Dr. Framjee opined that her temporary total disability due to lumbar strain resolved within two or three weeks of her injury. He concluded that appellant had no physical limitations due to her work-related injury. Dr. Framjee reviewed the surveillance video and found that she could perform activities of daily living normally without the gait demonstrated in his office.

The Board finds that Dr. Framjee’s report is based on a proper history of injury and provides findings in support of his conclusion that appellant’s employment-related condition had resolved without residuals and that she had no continuing disability. This report represents the special weight of the medical evidence and was sufficient to meet OWCP’s burden of proof to terminate her wage-loss and medical benefits effective March 2, 2015.

Following Dr. Framjee’s report, Dr. Blough submitted two additional reports dated January 26 and 28, 2015. He continued to support appellant’s ongoing lumbar conditions including lumbar sprain, lumbar radiculopathy, and lumbar annual tear at L4-5. Dr. Blough also supported her ongoing total disability due to these conditions. He opined that appellant did not demonstrate any behaviors consistent with symptom magnification. The Board finds that these reports are not based on a proper factual background and are insufficient to overcome the weight of Dr. Framjee’s reports or to create a conflict with those reports. The additional conditions alleged by Dr. Blough have not been accepted by OWCP and are not based on diagnostic studies. Dr. Framjee did not find an annular tear on the second MRI scan and the report of this test was also negative. As Dr. Blough was on one side of the conflict that Dr. Framjee resolved, the

20
Id.

10 additional reports from Dr. Blough are insufficient to overcome the special weight accorded Dr. Framjee’s report as the impartial medical specialist or to create a new conflict with it.21

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

The Board finds that appellant has not met her burden of proof to establish that she was totally disabled for the period November 6, 2013 through August 11, 2014 due to her accepted employment injuries. The Board further finds that OWCP met its burden of proof to terminate her wage-loss compensation and medical benefits effective March 2, 2015.

ORDER

IT IS HEREBY ORDERED THAT the March 2 and January 28, 2015 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: March 2, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21
Dorothy Sidwell, 41 ECAB 857, 874 (1990).

11