United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Sandy Springs, OK, Employer 

__________________________________________ 

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Docket No. 14-1053 

Issued: October 3, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 3, 2014 appellant filed a timely appeal of an October 22, 2013 decision of the 

Office of Workers’ Compensation Programs (OWCP) concerning the termination of his 

compensation benefits. 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 compensation for 

wage-loss and medical benefits effective August 26, 2012 on the grounds that he no longer had 

any residuals or disability causally related to his accepted employment-related injuries; 

(2) whether appellant had any continuing employment-related residuals or disability after 

August 26, 2012. 

On appeal, appellant contends that OWCP erred in terminating his compensation benefits 

as he continues to have residuals and disability from the accepted employment conditions. He 

 1

 5 U.S.C. § 8101 et seq. 
2

also argues that following the termination of his compensation there was a conflict in the medical 

opinion evidence based on the newly submitted medical reports. 

FACTUAL HISTORY 

On September 30, 1993 appellant, then a 33-year-old maintenance custodian,2

 filed a 

traumatic injury claim alleging that on September 29, 1993 he injured his back, left leg, left hip, 

rear end and testicles due to tripping and falling to the ground. OWCP accepted the claim for 

cervical sprain, lumbar sprain, left ankle sprain, a herniated nucleus pulposus at L5-S1, bilateral 

carpal tunnel syndrome, post-laminectomy syndrome, impotence of organic origin and thoracic 

or lumbosacral neuritis or radiculitis. Appellant stopped work on December 15, 1993. By letter 

dated March 16, 1995, OWCP placed him on the periodic rolls for temporary total disability and 

authorized a lumbar discectomy and fusion, which was performed on August 16, 1994. A left 

carpal tunnel release surgery was performed on April 22, 1997.3 

On May 11, 2012 OWCP referred appellant for a second opinion evaluation with 

Dr. Dennis E. Foster, a Board-certified orthopedic surgeon, to determine his current medical 

resuduals and work capability status. The attached statement of accepted facts listed the 

accepted conditions as cervical, lumbar and left ankle sprains, L5-S1 herniated disc, 

postlaminectomy syndrome and bilateral carpal tunnel syndrome. OWCP informed Dr. Foster 

that it had authorized a discetomy and fusion surgery and carpal tunnel release surgery. 

In a May 29, 2012 report, Dr. Foster, reviewed the medical evidence, statement of 

accepted facts and presented findings on physical examination. He concluded that appellant’s 

accepted employment conditions had resolved and no further treatment was required for the 

accepted employment injuries. In an attached work capacity evaluation form, he advised that 

appellant was capable of working an eight-hour day with restrictions. Cervical range of motion 

was 50 degrees extension, 35 degrees forward flexion and 85 degrees bilateral side rotation. 

Dr. Foster reported left ankle range of motion as 15 degrees ankle dorsiflexion, 20 degrees 

plantar flexion, 10 degrees eversion and 15 degrees inversion and lumbosacral range of motion 

as 75 degrees forward flexion, 10 degrees extension and 15 degrees bilateral side lateral bending. 

A physical examination revealed no paraspinous muscle spasm, mild discomfort on deep 

palpation of the lumbar midline segment, negative straight leg raising. Dr. Foster opined that 

appellant’s work-related injury had ceased, that no further medical treatment was required and 

that appellant was capable of working eight hours a day with restricions. 

On June 15, 2012 OWCP issued a notice proposing to terminate appellant’s wage-loss 

and medical benefits based on Dr. Foster’s opinion. It found that Dr. Foster represented the 

weight of the medical evidence establishing that his accepted conditions had resolved. 

 2

 At the time of his injury appellant was working light-duty six hours per day due to a shoulder injury caused by a 

nonemployment injury falling out of a tree during hunting season. 

3

 The report was dictated on April 22, 1997 and transcribed on April 23, 1997. No date of surgery is noted on the 

report. 
3

In a report dated July 11, 2012, Dr. F. David Kondos, an attending Board-certified family 

medicine physician, disagreed with the conclusions of Dr. Foster. He listed appellant’s medical 

conditions, including bilateral carpal tunnel syndrome, chronic thoracic and lumbar back pain, 

bilateral leg neuropathy, impotence and ankle instablity and pain. Dr. Kondos related that 

appellant also had severe depression and continued to be totally disabled as a result of his 

accepted work injuries. 

By decision dated July 27, 2012, OWCP terminated appellant’s compensation benefits 

effective August 26, 2012. 

Subsequently OWCP received a Febraury 13, 2013 cervical magnetic resonance imaging 

(MRI) scan and progress notes for the period November 12, 2012 to May 21, 2013 from 

Dr. Kondos. Dr. Kondos provided physical findings and opined that appellant continued to be 

totally disabled due to his employment injuries. 

On July 24, 2013 counsel requested reconsideration of the July 27, 2012 decision 

terminating his benefits. 

By decision dated October 22, 2013, OWCP denied modification of the July 27, 2012 

decision. 

LEGAL PRECEDENT -- ISSUE 1 

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

modification or termination of an employee’s benefits.4

 After it has determined that an 

employee has disability causally related to 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.5

 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.6

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability.7

 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.8

ANALYSIS 

OWCP accepted appellant’s claim for cervical sprain, lumbar sprain, left ankle sprain a 

herniated disc at L5-S1, bilateral carpal tunnel syndrome, postlaminectomy syndrome, impotence 

 4 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

5 I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

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

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

8 Kathryn E. Demarsh, supra note 7; James F. Weikel, 54 ECAB 660 (2003). 
4

of organic origin and thoracic or lumbosacral neuritis or radiculitis. It paid wage-loss and 

medical benefits. OWCP terminated appellant’s wage-loss compensation and medical benefits 

effective August 26, 2012 finding that he no longer had any residuals or disability due to his 

accepted employment conditions. 

In terminating appellant’s compensation benefits, OWCP relied on the May 29, 2012 

medical opinion of Dr. Foster, a second opinion Board-certified orthopedic surgeon. The Board 

finds that Dr. Foster’s opinion is of diminished probative value and is insufficient to represent 

the weight of the medical evidence. 

OWCP referred appellant for a second opinion evaluation with Dr. Foster to determine 

the nature and extent of his employment-related disability. In his May 29, 2012 report, 

Dr. Foster concluded that appellant’s accepted employment injuries had resolved. He opined 

that appellant had no residuals and required no further treatment for the accepted employment 

conditions. Dr. Foster stated that appellant was capable of working an eight-hour day with 

restrictions. The Board finds that in addressing causal relationship, he provided insufficient 

medical rationale to support his conclusory opinion regarding whether appellant’s accepted 

conditions had resolved. Dr. Foster provided a brief response to OWCP’s question and did not 

explain how his examination supported his conclusion. He did not fully address each of the 

accepted conditions. OWCP’s burden of proof to terminate compensation benefits must be based 

on rationalized medical opinion evidence. Dr. Foster failed to provide adequate rationale to 

support his conclusion that appellant’s accepted conditions had resolved. His report is of limited 

probative value.9

 

Moreover, Dr. Foster’s opinion is also of diminished probative value as it is based on an 

inaccurate statement of accepted facts. The Board has held that medical conclusions which are 

based on inaccurate or incomplete histories are of little probative value.10 OWCP provided 

Dr. Foster with appellant’s case file and a statement of accepted facts, but the statement of 

accepted facts dated April 27, 2012 does not reflect that appellant’s claim was accepted for 

impotence of organic origin and thoracic or lumbosacral neuritis or radiculitis. The statement of 

accepted facts provided to Dr. Foster listed the accepted employment conditions to be cervical, 

lumbar and left ankle sprains, L5-S1 herniated disc, postlaminectomy syndrome and bilateral 

carpal tunnel syndrome. OWCP procedures indicate that the accepted conditions must be 

included in a statement of accepted facts and when a second opinion specialist renders a medical 

opinion based on a statement of accepted facts which is incomplete or inaccurate or does not use 

the statement of accepted facts as the framework in forming his or her opinion, the probative 

value of the opinion is diminished.11 

 9 T.M., Docket No. 08-975 (issued February 6, 2009); T.F., 58 ECAB 128 (2006); Roma A. Mortenson-Kindschi, 

57 ECAB 418 (2006); see also S.D., 58 ECAB 713 (2007). 

10 L.G., Docket No. 09-1692 (issued August 11, 2010); M.W., 57 ECAB 710 (2006); James R. Taylor, 56 ECAB 

537 (2005) (medical conclusions based on an inaccurate or incomplete factual history are of diminished probative 

value). 

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

(October 1990). See Darletha Coleman, 55 ECAB 143 (2003); Richard O’Brien, 53 ECAB 234 (2001). 
5

Dr. Foster’s opinion that appellant had no continuing employment-related disability is, 

therefore, based on an incomplete factual history. The Board finds that OWCP improperly relied 

on Dr. Foster’s opinion to establish that appellant had no remaining disability or residuals from 

the accepted employment injuries. OWCP failed to meet its burden of proof to terminate his 

wage-loss and medical compensation benefits effective August 26, 2012. 

CONCLUSION 

The Board finds that OWCP improperly terminated appellant’s wage-loss and medical 

compensation benefits effective August 26, 2012.12 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated October 22, 2013 is reversed. 

Issued: October 3, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

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