United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 14-1510 

Issued: October 23, 2014 

Appearances: Case Submitted on the Record

Richard A. Daniels, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On June 23, 2014 appellant, through her representative, filed a timely appeal from the 

March 12, 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.2

 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

wage-loss and medical benefits effective March 22, 2011 on the grounds that she had no 

residuals of her February 20, 2010 work injury after that date; and (2) whether appellant met her 

burden of proof to establish that she had residuals of her February 20, 2010 work injury after 

March 22, 2011. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 Appellant submitted additional evidence after OWCP’s March 12, 2014 decision, but the Board cannot consider 

such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

OWCP accepted that on February 20, 2010 appellant, then a 57-year-old carrier, 

sustained sprains of her neck, lumbar and sacroiliac regions when she slipped on an icy area 

causing her body to lurch back and forth. Appellant stopped work on February 20, 2010. 

Beginning April 24, 2010 she received disability compensation on the daily rolls. 

The findings of a March 18, 2010 magnetic resonance imaging (MRI) scan of appellant’s 

neck revealed grade 1 anterolisthesis of C4 on C5 and C3-4, broad-based disc herniation at C3-4 

with bilateral intraforaminal extension and moderate bilateral foraminal narrowing, broad-based 

disc osteophyte complex at C4-5 with mildly narrowed foramina and broad-based disc 

osteophyte complex at C5-6 with mildly narrowed foramina. The findings of March 22, 2010 

MRI scan testing of her lumbar region showed a broad-based disc bulge at L5-S1, broad-based 

disc protrusion at L4-5 with moderately narrowed foramina and mildly stenotic canal and 

broad-based disc bulges at L2-3 and L3-4 with mildly narrowed foramina. Electromyogram 

(EMG) and nerve conduction velocity testing from April 1, 2010 showed mild radiculopathy 

stemming from L3-4, L4-5 and S1. 

Appellant received treatment from Dr. William H. Burnstein, a Board-certified internist. 

In a report dated March 23, 2010, Dr. Burnstein diagnosed cervical sprain/strain, disc herniation 

at C3-4, thoracolumbar sprain/strain, disc bulge at L2-3, L3-4 and L5-S1. He stated that, due to 

these injuries, appellant sustained a serious impairment of bodily function and noted, “Based 

upon this history given to me by the patient and my physical examination, it is my opinion that 

the injuries set forth in my diagnoses are causally related to the February 20, 2010 accident.” 

Given the limited assessment of appellant’s condition by attending physicians, OWCP 

referred her and the case record to Dr. Robert A. Smith, a Board-certified orthopedic surgeon, for 

a second opinion examination and opinion on whether she had continuing residuals of her 

February 20, 2010 work injury. 

In a September 9, 2010 report, Dr. Smith detailed appellant’s medical history including 

the circumstances of her February 20, 2010 work injury and the findings of diagnostic testing of 

her neck and lower back. He noted that the diagnostic testing showed degenerative changes of 

the cervical and lumbar spines, but did not show acute focal compression lesions that could be 

considered post-traumatic in nature. On physical examination, appellant’s gait and station 

appeared to be normal. Examination of her neck revealed no finding of any spasm, atrophy, 

trigger points or deformity. Active cervical range of motion was satisfactory but self-limited due 

to complaints of pain. Dr. Smith noted that during these maneuvers there was no spasm or 

rigidity present. In the thoracolumbar spine, there was satisfactory range of motion self-limited 

by complaints of pain, but there was no spasm or rigidity present during these maneuvers. 

Dr. Smith stated that, although appellant complained of numbness and tingling in both of her 

legs (left worse than right), the symptoms did not appear to be in any specific anatomical pattern 

and there were no objective deficits such as reflex change, motor weakness or atrophy. 

Distracted straight leg raising maneuvers bilaterally were negative without any radicular finding. 

In A September 9, 2010 report, Dr. Smith concluded that there were no discernable 

objective residuals with regards to the accepted conditions of sprains of the neck, lumbar and 
3

sacroiliac regions on current examination. He noted that there was never any acceptance for 

aggravation of preexisting arthritis, herniated cervical disc or neurological injury. Appellant 

required no additional treatment such as physical therapy, chiropractic manipulation, injections, 

aquatic therapy or surgery with regards to the accepted soft-tissue sprains. The reported findings 

from the MRI scans and the EMG studies were degenerative in nature and unrelated to the work 

incident of February 20, 2010. Dr. Smith stated: 

“Based on the above medical facts, [appellant] could return to regular-duty work 

with regards to the resolution of the accepted conditions of soft-tissue sprain of 

the spine. If any additional treatment or disability occurs, this would be related to 

her nonindustrial degenerative disease and not the incident of February 20, 2010. 

There are no residuals from the soft-tissue injuries to the spine that are the 

accepted conditions....”3

 

In a September 17, 2010 letter, OWCP advised appellant that it proposed to terminate her 

wage-loss and medical benefits on the grounds that she ceased to have residuals of her 

February 20, 2010 work injury.4

 The proposed termination action was supported by the 

September 9, 2010 report of Dr. Smith. Appellant was provided 30 days to present evidence or 

argument challenging the proposed action. 

Dr. Burnstein continued to submit treatment notes regarding appellant, none of which 

provide a clear opinion regarding whether she continued to have residuals of her 

February 20, 2010 work injury. In an October 9, 2010 form report, he listed the date of injury as 

February 20, 2010 and provided various work restrictions.5

In a November 24, 2010 decision, OWCP terminated appellant’s compensation effective 

that date. It found that she ceased to have residuals of her February 20, 2010 work injury after 

that date. OWCP later set aside this decision because the September 17, 2010 preliminary notice 

of proposed termination was not sent to counsel. 

On December 2, 2010 OWCP sent appellant and her representative a new letter advising 

that it proposed to terminate her wage-loss compensation and medical benefits on the grounds 

that she ceased to have residuals of her February 20, 2010 work injury. It noted that the 

proposed termination action was based on the September 9, 2010 report of Dr. Smith. Appellant 

was provided 30 days from the date of the letter to present evidence and argument challenging 

the proposed action. 

In an undated report received on December 27, 2010, Dr. Burnstein stated that he initially 

evaluated appellant on February 22, 2010 after she sustained injuries to her neck and back due to 

 3

 In an attached September 9, 2010 form report, Dr. Smith indicated that appellant could perform her regular work 

without restrictions. 

4

 The letter was sent to appellant but was not sent to her representative at the time. 

5

 The record also contains an Attending Physician’s Report which appears that have been completed by 

Dr. Burnstein on October 26, 2010, but the findings of the report are illegible. 
4

slipping on ice/snow while carrying mail on February 20, 2010. He discussed her diagnostic 

testing and stated: 

“I disagree with Dr. Smith’s opinions. Firstly, even if the MRI scan and EMG 

findings were present prior to her work-related injury, they clearly became 

symptomatic as a result of the injury. [Appellant] was carrying mail, which 

indicates she was in good health relevant to her neck and back and denied having 

any symptoms prior to slipping while at work. While some of the MRI scan 

findings are clearly degenerative and therefore preexisted the injury, it is 

impossible to state whether or not some of the disc abnormalities were a direct 

result of the fall. In any event, the underlying abnormalities found on MRI scan 

are now symptomatic as a direct result of the fall. Furthermore the EMG findings 

... were likely a direct result of the injury sustained on February 20, 2010. 

Additionally, Dr. Smith fails to mention chronic pain syndrome which she was 

diagnosed with since her pain is not significantly improved -- it has been 10 

months with no significant improvement.”6

OWCP found that Dr. Smith was in good standing with medical licensing authorities and 

that a different physician named Robert A. Smith had his license suspended. 

In a March 22, 2011 decision, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective March 22, 2011. It found that she had no residuals of her 

February 20, 2010 work injury after that date. OWCP relied on the well-rationalized report of 

Dr. Smith, OWCP referral physician.7

 It found that the opinion of Dr. Burnstein was of limited 

probative value on the relevant issue of the case because it lacked medical rationale. 

Appellant requested a telephone hearing with an OWCP hearing representative. During 

the July 19, 2011 hearing, appellant’s representative argued that the opinion of Dr. Burnstein 

showed that appellant continued to have work-related residuals. 

In a September 8, 2011 decision, an OWCP hearing representative affirmed the 

March 22, 2011 termination decision finding that the weight of the medical opinion rested with 

Dr. Smith. 

In an August 14, 2012 report, Dr. Matthew McLean, an attending Board-certified 

orthopedic surgeon, stated that he first saw appellant on October 19, 2011 for neck and back 

pain. Appellant advised him that she had slipped on some ice at work in February 2010. 

Dr. McLean reported the findings of the initial October 19, 2011 examination, including mild 

paraspinal tenderness of the neck and left-sided lumbar paraspinal tenderness radiating into the 

 6

 Dr. Burnstein indicated that it had come to his attention that a physician named Robert A. Smith had been 

disciplined for various professional improprieties. He stated that, if Dr. Smith who examined appellant was the 

same physician, then his opinion on appellant’s condition would be without merit. 

7

 OWCP noted that Dr. Smith was in good standing with medical licensing authorities. 
5

left buttock. He discussed the findings of additional examinations between December 7, 2011 

and appellant’s last visit on April 11, 2012 and stated: 

“[Appellant] developed symptomatic cervical degenerative disc disease and 

cervical [herniated nucleus pulposus] as well as lumbar degenerative disc disease 

and lumbar radiculopathy along with myofascial pain in both trapezius as a result 

of her work injury in February 2010. As of her most recent visit she was doing 

fairly well and should be able to do some light[-]duty work.” 

In a January 3, 2013 decision, OWCP affirmed its September 8, 2011 decision noting that 

the opinion of Dr. McLean was not supported by adequate medical rationale. 

In a December 12, 2013 letter, appellant, through her representative, requested 

reconsideration of the January 3, 2013 decision. Appellant’s representative argued that 

Dr. McLean was well qualified to assess appellant’s medical condition and asserted that his 

August 14, 2012 report established that she continued to have work-related residuals. 

In a March 12, 2014 decision, OWCP affirmed its December 13, 2012 termination 

decision finding that the opinion of Dr. McLean was not well rationalized. 

LEGAL PRECEDENT -- ISSUE 1 

 Under FECA, once OWCP has accepted a claim it has the burden of justifying 

termination or modification of compensation benefits.8 OWCP may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.9 

Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence 

based on a proper factual and medical background.10

ANALYSIS -- ISSUE 1 

 OWCP accepted that on February 20, 2010 appellant, then a 57-year-old carrier, 

sustained sprains of her neck, lumbar and sacroiliac regions when she slipped on an icy area and 

her body lurched back and forth. Beginning April 24, 2010 appellant received disability 

compensation on the daily rolls. OWCP terminated his wage-loss compensation and medical 

benefits effective March 22, 2011 on the grounds that she had no residuals of her 

February 20, 2010 work injury after that date. Its termination action was based on the 

September 9, 2010 report of Dr. Smith, a Board-certified orthopedic surgeon who served as an 

OWCP referral physician. 

The Board finds that the weight of the medical evidence is represented by the thorough, 

well-rationalized opinion of Dr. Smith, OWCP’s referral physician. The September 9, 2010 

 8 I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986). 

9 Charles E. Minniss, 40 ECAB 708, 716 (1989). 

10 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 
6

report of Dr. Smith establishes that appellant had no disability due to her February 20, 2010 work 

injury after March 22, 2011. 

Dr. Smith addressed appellant’s medical history, including the findings of diagnostic 

testing and indicated that examination of her neck revealed no finding of any spasm, atrophy, 

trigger points or deformity. Active cervical and thoracolumbar range of motion was satisfactory 

but self-limited due to complaints of pain. Dr. Smith noted that during these maneuvers there 

was no spasm or rigidity present. He indicated that, although appellant complained of numbness 

and tingling in both of her legs, these symptoms did not appear to be in any specific anatomical 

pattern and there were no objective deficits such as reflex change, motor weakness or atrophy. 

Distracted straight leg raising maneuvers bilaterally were negative without any radicular finding. 

Dr. Smith concluded that there were no discernable objective residuals with regards to the 

accepted conditions of sprains of the neck, lumbar and sacroiliac regions on current examination. 

These conditions had resolved and appellant could return to her regular work. Dr. Smith noted 

that the reported findings from the MRI scans and the EMG studies were degenerative in nature 

and unrelated to the work incident of February 20, 2010 and stated that appellant’s continuing 

complaints would be related to these nonwork-related conditions. 

 The Board has carefully reviewed the opinion of Dr. Smith and finds that it has 

reliability, probative value and convincing quality with respect to its conclusions regarding the 

relevant issue of the present case. Dr. Smith provided a thorough factual and medical history and 

accurately summarized the relevant medical evidence.11 He provided medical rationale for his 

opinion by explaining that there was no objective evidence, either on physical examination or 

diagnostic testing, that appellant continued to have residuals of the soft-tissue injuries that were 

accepted as occurring on February 20, 2010. Moreover, appellant’s continuing neck and back 

complaints could be explained by the natural progression of nonwork-related degenerative 

disease in those regions. 

 On appeal, appellant’s representative argued that the reports of Dr. Burnstein, an 

attending Board-certified, internist established that appellant continued to have residuals of her 

February 20, 2010 work injury after March 22, 2011. The Board finds that the opinion of 

Dr. Burnstein is of limited probative value because his opinion on causal relationship is not 

fortified by adequate medical rationale.12 In a December 27, 2010 report, Dr. Burnstein 

suggested that the degenerative cervical and lumbar spine changes seen on diagnostic testing 

were related, in part, to the February 20, 2010 work injury. He also suggested that appellant had 

a chronic pain syndrome related to the February 20, 2010 work injury. The Board notes that 

appellant’s claim was accepted by OWCP for the soft-tissue injuries of sprains of her neck, 

lumbar and sacroiliac regions. Dr. Burnstein did not describe the February 20, 2010 work injury 

in any detail or otherwise provide adequate rationale for his opinion that appellant sustained a 

more severe injury on February 20, 2010. 

 11 See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957). 

12 See C.E., Docket No. 14-710 (issued August 11, 2014); George Randolph Taylor, 6 ECAB 986, 988 (1954) 

(finding that a medical opinion not fortified by medical rationale is of little probative value). 
7

Moreover, Dr. Burnstein’s opinion on causal relationship is equivocal in nature as he 

stated, “While some of the MRI scan findings are clearly degenerative and therefore preexisted 

the injury, it is impossible to state whether or not some of the disc abnormalities were a direct 

result of the fall.” He indicated that a physician named Robert A. Smith had been disciplined for 

various professional improprieties. Dr. Burnstein stated that, if the physician who examined 

appellant was the same physician, then his opinion on appellant’s condition would be without 

merit. However, the record contains evidence showing that Dr. Smith of the present case is in 

good standing with medical licensing authorities and that another physician named Robert A. 

Smith had his license revoked. 

LEGAL PRECEDENT -- ISSUE 2 

 After termination or modification of compensation benefits, clearly warranted on the 

basis of the evidence, the burden for reinstating compensation benefits shifts to the claimant. In 

order to prevail, the claimant must establish by the weight of the reliable, probative and 

substantial evidence that he or she had an employment-related disability which continued after 

termination of compensation benefits.13

ANALYSIS -- ISSUE 2 

 After OWCP’s March 22, 2011 decision terminating appellant’s compensation appellant 

submitted additional medical evidence which she felt showed that she was entitled to 

compensation after March 22, 2011 due to residuals of her February 20, 2010 work injury. 

Given that the Board has found that OWCP properly relied on the opinion of its referral 

physician, Dr. Smith, in terminating appellant’s compensation effective March 22, 2011, the 

burden shifts to appellant to establish that she is entitled to compensation after that date. The 

Board has reviewed the additional evidence submitted by appellant and finds that it is not of 

sufficient probative value to establish that she had residuals of her February 20, 2010 work injury 

after March 22, 2011. 

Appellant submitted an August 14, 2012 report of Dr. McLean, an attending Boardcertified orthopedic surgeon. However, the Board finds Dr. McLean’s report of limited 

probative on the relevant issue of this case because its opinion on causal relationship is not 

fortified by adequate medical rationale.14 In his report, Dr. McLean discussed his several 

examinations of appellant between October 19, 2011 and April 11, 2012 and stated that, 

“[Appellant] developed symptomatic cervical degenerative disc disease and cervical [herniated 

nucleus pulposus] as well as lumbar degenerative disc disease and lumbar radiculopathy along 

with myofascial pain in both trapezius as a result of her work injury in February 2010.” 

However, he did not provide any explanation for this conclusory statement. As previously noted, 

appellant’s claim has only been accepted for sprains of her neck, lumbar and sacroiliac regions. 

 13 Wentworth M. Murray, 7 ECAB 570, 572 (1955). 

14 In its January 3, 2013 decision, OWCP suggested that Dr. McLean was not a qualified Board-certified 

orthopedic surgeon and therefore did not have the appropriate qualifications to evaluate appellant’s medical 

condition. The Board notes that he is, in fact, certified by the American Board of Orthopedic Surgery. 
8

Dr. McLean did not discuss her February 20, 2010 work injury in any detail and explain how it 

caused such severe and varied injuries to her neck and spine. 

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 OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective March 22, 2011 on the grounds that she had no 

residuals of her February 20, 2010 work injury after that date. The Board further finds that 

appellant did not meet her burden of proof to establish that she had residuals of her 

February 20, 2010 work injury after March 22, 2011. 

ORDER 

IT IS HEREBY ORDERED THAT the March 12, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 23, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board