United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 14-1634 

Issued: August 11, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 21, 2014 appellant, through counsel, filed a timely appeal from a May 9, 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. 

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s 

compensation benefits on October 9, 2013. 

On appeal counsel maintains that the opinion of the attending physician Dr. Charles M. 

Bolno, an osteopath, is sufficient to establish residual disability and that the opinion of an OWCP 

referral physician Dr. Zohar Stark, a Board-certified orthopedic surgeon, was inconsistent with 

the statement of accepted facts and was therefore insufficient to carry the weight of the medical 

evidence. He asserts that the termination of benefits should be reversed or, in the alternative, the 

case should be referred to a referee physician. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On May 28, 2011 appellant, then a 33-year-old mail processing clerk expediter, filed a 

traumatic injury claim alleging that she injured her back and shoulder on May 27, 2011 while 

pulling large, heavy mail containers. She stopped work on May 27, 2011. In a brief emergency 

department report dated May 28, 2011, Dr. Brian Clohessy, an osteopath, diagnosed shoulder 

pain. 

Appellant subsequently came under the care of Dr. Bolno, an osteopath who practices 

family medicine and orthopedic surgery. On May 31, 2011 Dr. Bolno advised that the May 27, 

2011 injury caused acute traumatic cervical and lumbar radiculopathy, acute traumatic arthritis 

of both shoulders, and acute traumatic cervical and lumbar spine sprain and strain. He advised 

that appellant was totally disabled. A June 27, 2011 magnetic resonance imaging (MRI) scan 

study of the left shoulder demonstrated degenerative changes and was suspicious for tear within 

the superior labrum. An MRI scan study of the lumbar spine that day demonstrated a small disc 

herniation at T12-L1 and a moderate herniation at L5-S1 with degenerative changes seen. A 

June 28, 2011 MRI scan study of the cervical spine revealed no evidence of disc herniation or 

spinal stenosis. A June 29, 2011 MRI scan study of the right shoulder was unremarkable. 

Following an initial denial on July 14, 2011, on September 29, 2011 an OWCP hearing 

representative reversed the July 14, 2011 decision, and appellant’s claim was accepted for 

displacement of intervertebral discs without myelopathy at T12-L1 and L5-S1 and cervical and 

lumbar radiculopathy. She received compensation and was placed on the periodic compensation 

rolls. 

In October 2011 OWCP referred appellant to Dr. Robert F. Draper, Jr., a Board-certified 

orthopedic surgeon, for a second opinion evaluation. He provided a work capacity evaluation 

dated December 1, 2011 and a report dated December 2, 2011. 

Dr. Bolno continued to submit reports in which he reiterated his diagnoses and indicated 

that a July 28, 2011 electrodiagnostic study of the lower extremities demonstrated acute L5-S1 

radiculopathy. 

OWCP determined that a conflict in medical evidence had been created between the 

opinions of Dr. Bolno and Dr. Draper regarding appellant’s physical restrictions and work 

abilities, and referred her to Dr. William H. Simon, a Board-certified orthopedic surgeon, for an 

impartial evaluation. Dr. Simon provided a June 4, 2012 report and advised that appellant could 

perform sedentary duty. 

In a July 2, 2012 letter, OWCP proposed to terminate appellant’s compensation and 

medical benefits on the grounds that the medical evidence, as characterized by Dr. Simon’s 

report, established that she no longer had residuals or disability due to the May 27, 2011 
3

employment injury. Appellant, through counsel, disagreed with the proposed termination. 

Dr. Simon provided an additional report on July 14, 2012.2 

In a July 6, 2012 report, Dr. Marc C. Cohen, a chiropractor, noted review of emergency 

records dated May 27, 2011 and MRI scan studies of the left and right shoulder and left foot and 

ankle. He diagnosed cervical sprain/strain; rule out cervical disc herniation; rule out cervical 

radiculopathy; lumbar-sacral myofasciitis/sprain/strain; small left paracentral disc herniation at 

T1-2-L1; moderate size broad-based central disc herniation at L5-S1; bilateral shoulder 

sprain/strain; superior labral tear of the left shoulder; and tendinopathy of the left shoulder due to 

the May 2011 employment injury. A whole body bone scan on July 24, 2012 showed increased 

activity in the knees and shoulders, similar to an examination of November 11, 2011. 

By decision August 21, 2012, OWCP found that the weight of the medical evidence 

rested with the opinion of Dr. Simon and finalized the termination of wage-loss and medical 

compensation benefits, effective August 25, 2012. Appellant, through counsel, timely requested 

a hearing. 

In an October 10, 2012 decision, an OWCP hearing representative set aside the 

August 21, 2012 termination decision and remanded the case for further development. She 

found the wording of a question furnished by OWCP to Dr. Draper was inappropriate and thus 

his opinion should be excluded. As such, it was premature to find a conflict in medical evidence. 

Upon remand OWCP was to refer appellant for a new second opinion evaluation and reinstate 

wage-loss compensation. 

In October 2012 OWCP referred appellant to Dr. Noubar A. Didizian, a Board-certified 

orthopedic surgeon, for a second opinion evaluation.3

 

In a December 6, 2012 letter, OWCP proposed to terminate appellant’s wage-loss and 

medical benefits as the medical evidence, as characterized by Dr. Didizian’s report, established 

that she no longer had residuals or disability due to the May 27, 2011 employment injury. 

Appellant, through counsel, disagreed with the proposed termination and submitted a 

December 21, 2012 report in which Dr. Bolno reviewed appellant’s diagnostic studies and 

medical care. Dr. Bolno reported that, shortly after she returned to light duty in July 2012, she 

sustained additional work-related injuries, and continued to have severe cervical and lumbar pain 

that radiated into the shoulders and down both legs. He described physical examination findings 

of severe neck spasm and neurosensory impairment over the L4 to S1 and C4 to C6 nerve roots 

and restricted range of motion of the cervical and lumbar spine. 

By decision dated March 27, 2013, OWCP found that the weight of the medical evidence 

rested with the opinion of Dr. Didizian and finalized the termination of wage-loss and medical 

 2

 Appellant returned to work on July 12 or 13, 2012. On July 13, 2012 she filed a traumatic injury claim alleging 

that a driver crashed into her, injuring her back and hand. Appellant stopped work that day. OWCP adjudicated the 

claim under file number xxxxxx981 and accepted lumbar sprain. Appellant returned to modified duty in 

September 2012. 

3

 Dr. Didizian provided a November 26, 2012 report which, as discussed infra, has been excluded from the 

record. 
4

compensation benefits, effective August 25, 2012. Appellant, through counsel, timely requested 

a hearing. 

In a June 24, 2013 decision, an OWCP hearing representative set aside the March 27, 

2013 decision and remanded the case to OWCP. She found that Dr. Didizian had been provided 

a copy of Dr. Draper’s report when that report should have been excluded. As such, 

Dr. Didizian’s report should also be excluded. OWCP was instructed to refer appellant for a new 

second-opinion evaluation. 

In July 2013 OWCP referred appellant, along with a statement of accepted facts and a set 

of questions, to Dr. Stark, a Board-certified orthopedic surgeon, for a second opinion evaluation.4

 

A July 17, 2013 MRI scan study of the left shoulder demonstrated findings suggestive of 

supraspinatus tendinopathy without focal tear and acromioclavicular joint hypertrophy with mild 

impingement. 

In a July 23, 2013 report, Dr. Stark described appellant’s report of the employment injury 

and her complaints of radiating low back pain, left shoulder pain, and left foot pain.5 He noted 

his review of the medical record, including diagnostic studies and appellant’s complaint of 

radiating low back pain, tingling and numbness in both lower extremities, and left shoulder pain 

that started two months previously. Physical examination demonstrated that appellant was able 

to walk with a normal gait. There was no tenderness on examination of the cervical spine and no 

spasm with normal motion. There was tenderness on palpation over the spinous processes of the 

midthoracic and lumbosacral vertebrae and over the paradorsal and paralumbar musculature with 

no spasm. Appellant complained of pain on motion. Sitting root test was negative, and straight 

leg raising was negative at 80 degrees bilaterally. There was no sensory or motor deficit to the 

upper or lower extremities, and deep tendon reflexes to the extremities were present and equal 

bilaterally. Examination of her left shoulder revealed local tenderness on palpation with 

diminished range of motion. Impingement and apprehension tests were negative. 

Dr. Stark opined based on the history given by appellant and his review of the medical 

records, it was his opinion that none of the accepted diagnoses were related to the May 27, 2011 

work incident. He further opined that the demonstrated degenerative disc disease found on MRI 

scan study of her lumbar spine was not caused by the May 2011 preexisting condition. Dr. Stark 

noted that he found no evidence of cervical or lumbar radiculopathy on his physical examination. 

He further opined that the May 27, 2011 incident caused a lumbar strain and left shoulder sprain 

from which appellant had recovered, and that the shoulder pain she had developed two months 

prior to his examination had no connection to the May 27, 2011 injury. Dr. Stark concluded that 

she had no remaining residuals of the May 27, 2011 injury and was not totally or partially 

disabled at the time of his examination secondary to the May 27, 2011 incident. In an attached 

 4

 The statement of accepted facts indicated that appellant was under the care of Dr. Bolno and described 

diagnostic studies. The statement also indicated that she had a second employment injury that occurred on July 13, 

2013 that had been accepted for lumbar sprain. The questions provided Dr. Stark were: “Which conditions were 

sustained as a result of the May 27, 2011 work injury? Does the claimant continue with residuals of these sustained 

conditions? Is the claimant totally or partially disabled due to these sustained conditions, and if partially disabled, 

does the claimant require restrictions to return to work?” Dr. Stark was asked to fully address the questions on a 

work capacity evaluation (OWCP Form 5c) and attach the form to his report. 

5

 Dr. Stark did not indicate that he reviewed the reports of Drs. Draper, Simon, and Didizian. 
5

work capacity evaluation, he advised that appellant had reached maximum medical improvement 

and could perform her usual job duties without restriction. 

In an August 8, 2013 letter, OWCP proposed to terminate appellant’s compensation and 

medical benefits on the grounds that the medical evidence, as characterized by Dr. Stark’s report, 

established that she no longer had residuals or disability due to the May 27, 2011 employment 

injury. Counsel disagreed with the proposed termination and submitted a September 12, 2013 

report in which Dr. Bolno reiterated his medical findings and conclusions. Dr. Bolno found on 

physical examination that appellant still had restricted cervical spine range of motion and severe 

pain with flexion and extension of the lumbar spine. He advised that appellant had never fully 

recovered from the May 27, 2011 employment and was unable to perform full duty. 

By decision October 9, 2013, OWCP found that the weight of the medical evidence 

rested with the opinion of Dr. Stark and finalized the termination of wage-loss and medical 

compensation benefits. Appellant, through counsel, timely requested a hearing. Counsel noted 

that appellant was working full-time light duty. He asserted that because Dr. Stark opined that 

the accepted conditions were not caused by the May 27, 2011 employment injury, his opinion 

was insufficient to carry the weight of the medical evidence. Counsel asserted that, at the least, a 

conflict in medical evidence had been established between Dr. Stark and Dr. Bolno regarding 

whether appellant continued to have residuals of the accepted conditions. 

In a May 9, 2014 decision, an OWCP hearing representative found that the weight of the 

medical evidence rested with the opinion of Dr. Stark who performed a thorough examination 

and reviewed the complete medical record. She affirmed the October 9, 2013 decision. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits. It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.6 

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.7

 

ANALYSIS 

OWCP accepted that on May 27, 2011 appellant sustained employment-related 

displacement of intervertebral discs without myelopathy at T12-L1 and L5-S1 and cervical and 

lumbar radiculopathy. Appellant returned to work briefly in July 2012 and since 

September 2012 has been working modified duty.8

In July 2013 OWCP referred her to Dr. Stark for a second opinion evaluation. In a 

July 23, 2013 report, Dr. Stark described appellant’s report of the employment injury, her 

complaints of radiating low back pain, and left shoulder pain, his review of the medical record, 

 6 Jaja K. Asaramo, 55 ECAB 200 (2004). 

7 Id.

8 Supra note 3. 
6

and physical examination findings.9

 He indicated that none of the accepted diagnoses were 

related to the May 27, 2011 incident at work. Dr. Stark further opined that the demonstrated 

degenerative disc disease found on MRI scan study of her lumbar spine was not caused by the 

May 2011 injury and was a preexisting condition. He noted that he found no evidence of 

cervical or lumbar radiculopathy on his physical examination. Dr. Stark further opined that the 

May 27, 2011 incident caused a lumbar strain and left shoulder sprain from which she had 

recovered, and that the shoulder pain she had developed two months prior to his examination had 

no connection to the May 27, 2011 injury. He concluded that appellant had no remaining 

residuals of the May 27, 2011 injury and was not totally or partially disabled at the time of his 

examination secondary to the May 27, 2011 incident. In an attached work capacity evaluation, 

Dr. Stark advised that appellant had reached maximum medical improvement and could perform 

her usual job duties without restriction. 

As noted, Dr. Stark opined that none of the accepted conditions were caused by the 

May 27, 2011 employment injury and that she only sustained a lumbar strain and left shoulder 

sprain that day, from which she had recovered. However, acceptance of displacement of 

intervertebral discs without myelopathy at T12-L1 and L5-S1 and cervical and lumbar 

radiculopathy has not been rescinded. The Board finds that Dr. Stark’s report does not comport 

with the statement of accepted facts and does not comport with adequate rationale the 

determination that her residuals have ceased.10 Dr. Stark’s opinion is insufficient to establish 

that appellant’s disability had ceased. Dr. Bolno, appellant’s attending physician, has been 

consistent in his opinion that she continues to have residuals of the May 27, 2011 employment 

injury. OWCP did not meet its burden of proof to terminate appellant’s compensation and 

medical benefits for the May 27, 2011 employment injury.11

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation and medical benefits on October 9, 2013. 

 9

 Dr. Stark did not indicate that he reviewed the reports of Drs. Draper, Simon, and Didizian. 

10 See John L. Hofmann, Docket No. 04-1802 (issued November 22, 2004). 

11 J.W., Docket No. 14-250 (issued May 28, 2014). 
7

ORDER 

IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of Workers’ 

Compensation Programs is reversed. 

Issued: August 11, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board