United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.C., Appellant 

and 

DEPARTMENT OF COMMERCE, ECONOMICS 

& STATISTICS ADMINISTRATION, CENSUS 

BUREAU, Bowling Green, KY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1212 

Issued: November 19, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 30, 2014 appellant, through counsel, filed a timely appeal from a March 26, 

2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) affirming the 

prior termination of her wage-loss and medical 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. 

ISSUE 

The issue is whether OWCP met its burden of proof in terminating appellant’s 

compensation benefits effective September 22, 2013 on the grounds that an accepted lumbar 

contusion, lumbar sprain, intervertebral disc disorder and aggravation of multilevel lumbar 

degenerative disc disease ceased without residuals. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

On appeal, counsel contends that OWCP’s March 26, 2014 decision is “[c]ontrary to law 

and fact.” 

FACTUAL HISTORY 

OWCP accepted that on July 9, 2010 appellant, then a 35-year-old census enumerator, 

sustained a lumbar contusion, lumbar sprain, intervertebral disc disorder and temporary 

aggravation of degenerative lumbar disc disease when she slipped and fell on wet steps, striking 

her neck and back. Appellant stopped work on the date of injury and did not return. She 

received wage-loss compensation for total disability beginning on August 24, 2010. Appellant 

was separated from the employing establishment on August 28, 2010 due to a lack of available 

work. 

Dr. David P. Rouben, an attending Board-certified orthopedic surgeon, followed 

appellant beginning on August 11, 2010, noting her history of two prior lumbar surgeries, the 

latest an L2-3 fusion performed in 2002. He found appellant totally disabled for work. On 

September 22, 2010 Dr. Rouben opined that appellant’s condition remained unchanged from 

2002. He noted that the July 9, 2010 work incident may have exacerbated degenerative lumbar 

disc disease, but that her symptoms were somewhat inconsistent with objective findings. 

Dr. Kyaw J. Htin, an attending physician Board-certified in anesthesiology and pain 

medicine, provided periodic reports from January 25, 2011 to May 21, 2013 prescribing opioid 

medications. In an April 28, 2011 report, he advised that appellant’s soft tissue injuries had 

resolved but that she required a repeat lumbar fusion. 

In reports from April 28 to October 5, 2011, Dr. Rouben opined that appellant required a 

repeat lumbar fusion to address progressive deterioration of the lumbar spine with radiculopathy 

at all segments from L3 to S1.2

 On October 18, 2011 Dr. Rouben performed an anterior 

interbody fusion at L3-4 and L4-5 with cage fixation and autologous bone graft, approved by 

OWCP. He submitted a December 8, 2011 report noting that appellant’s symptoms improved 

after surgery. On March 26, 2012 Dr. Rouben noted that appellant remained disabled for work 

as a deep venous thrombosis and pulmonary embolism prevented her from participating in 

physical therapy.3

On June 25, 2012 OWCP obtained a second opinion from Dr. Bryant Bloss, a Boardcertified orthopedic surgeon, who reviewed the medical record and a statement of accepted facts. 

                                                             2

 On June 21, 2011 OWCP obtained a second opinion from Dr. Stanley W. Collis, a Board-certified orthopedic 

surgeon, who opined that the accepted injuries and temporary aggravation of degenerative lumbar disc disease had 

ceased without residuals. Following additional development and review by an OWCP medical adviser, OWCP 

approved Dr. Rouben’s request to authorize a repeat lumbar interbody fusion. 

3

 Appellant also provided reports dated from January to March 2012 by a nurse practitioner. However, a nurse 

practitioner is not competent to render a medical opinion under FECA. Therefore, these reports are of no probative 

value. D.N., Docket No. 13-1534 (issued March 12, 2014); see also David P. Sawchuk, 57 ECAB 316 (2006) (lay 

individuals such as physician assistants, nurses and physical therapists are not competent to render a medical opinion 

under FECA. See also 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, 

clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as 

defined by State law). 
3

On examination, Dr. Bloss found that appellant’s L2-3, L3-4 and L4-5 fusions were stable based 

on x-ray and clinical examination. He noted decreased reflexes in the lower extremities and 

reduced lumbar motion consistent with appellant’s surgical history. Appellant used a walker to 

ambulate for significant distances. Dr. Bloss opined that the accepted temporary aggravation of 

degenerative lumbar disc disease had ceased. He recommended a work hardening program to 

address strength and range of motion issues. In an August 12, 2012 supplemental report, 

Dr. Bloss opined that the October 2011 fusion resolved the accepted conditions by stabilizing the 

lumbar spine and returning it to baseline. 

In a December 7, 2012 report, Dr. Rouben reviewed Dr. Bloss’ opinions and concurred 

that appellant’s condition had returned to preinjury baseline status. He opined that “the only 

impediment for [appellant] to have reached maximum medical benefit improvement is 

documented, substantiated, witnessed cooperation and participation and completion of a work 

hardening program as suggested by Dr. Bloss.” On January 2, 2013 Dr. Rouben noted that 

appellant fell in December 2012, resulting in left trochanteric bursitis and a concussion.4

By notice dated July 9, 2013, OWCP advised appellant that it proposed to terminate her 

wage-loss and medical compensation benefits because the accepted injury had ceased without 

residuals, based on Dr. Bloss’ opinion as the weight of the medical evidence. 

In response, appellant submitted a July 17, 2013 report from Dr. Rouben stating that 

while appellant’s condition improved after the October 2011 repeat lumbar fusion, her symptoms 

still prevented her from returning to work. Dr. Rouben noted that one of the pedicle screws may 

have loosened. 

By decision dated September 12, 2013, OWCP terminated appellant’s wage-loss and 

medical benefits effective September 22, 2013, based on Dr. Bloss’ opinion as the weight of the 

medical evidence. 

In an October 2, 2013 letter postmarked October 11, 2013, appellant requested a review 

of the written record, asserting that the termination was erroneous. She contended that her 

physicians opined that the accepted injuries required additional testing and treatment. Appellant 

submitted medication management reports from Dr. Htin dated from July 23 to 

November 18, 2013. In a January 23, 2014 report, Dr. Htin related appellant’s account that 

Dr. Rouben was contemplating additional surgery as one of the lower level fusion screws had 

loosened. 

By decision dated and finalized March 26, 2014, an OWCP hearing representative 

affirmed OWCP’s September 12, 2013 decision, finding that the additional evidence submitted 

was insufficient to outweigh Dr. Bloss’ opinion that the accepted injuries resolved without 

residuals. 

                                                             4

 On March 22, 2013 the employing establishment offered appellant a modified position within her medical 

limitations. Appellant refused the position, asserting that she remained totally disabled for work. 
4

LEGAL PRECEDENT 

Once OWCP has accepted a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.5

 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation 

without establishing either that the disability has ceased or that it is no longer related to the 

employment.6

ANALYSIS 

OWCP accepted that appellant sustained a lumbar contusion, lumbar sprain, 

intervertebral disc disorder and temporary aggravation of degenerative lumbar disc disease. She 

stopped work on July 9, 2010 and did not return. Appellant received compensation for total 

disability. 

Dr. Rouben, an attending Board-certified orthopedic surgeon, found appellant totally 

disabled for work from August 11, 2010 onward. Dr. Htin, an attending Board-certified 

anesthesiologist, provided pain management from January 2011 onward, noting that appellant’s 

soft tissue injuries had resolved by April 28, 2011. On October 18, 2011, he performed a lumbar 

interbody fusion at L3-4 and L4-5, approved by OWCP. 

Dr. Bloss, a Board-certified orthopedic surgeon and second opinion physician, provided 

June 25 and August 12, 2012 reports explaining that the accepted lumbar injuries and temporary 

aggravation of degenerative lumbar disc disease had ceased without residuals as the October 18, 

2011 fusion stabilized the lumbar spine and returned appellant’s condition to baseline. 

Dr. Rouben agreed with Dr. Bloss’ assessment on December 7, 2012, noting that appellant would 

attain maximum medical improvement if she cooperated with physical therapy. He noted in 

January 2 and July 17, 2013 reports that appellant had fallen in December 2012, but did not 

opine that the fall was in any way related to the accepted injuries or their sequelae. While he 

indicated that one of the pedicle screws may have loosened, he offered no definite etiology for 

this finding. Therefore, OWCP terminated appellant’s wage-loss and medical benefits effective 

September 22, 2013, based on Dr. Bloss’ reports as the weight of the medical evidence. 

Pursuant to an October 11, 2013 request for a review of the written record, appellant 

submitted additional pain management notes from Dr. Htin dated from July 2013 to 

January 2014. While Dr. Htin related appellant’s account that Dr. Rouben wanted to reoperate 

due to a possible loose pedicle screw, he did not provide his own medical opinion on this issue or 

otherwise verify appellant’s remarks. Therefore, OWCP issued its March 26, 2014 decision 

affirming the September 22, 2013 termination of appellant’s wage-loss and medical 

compensation benefits. 

The Board finds that OWCP properly accorded the weight of the medical evidence to 

Dr. Bloss, who based his opinion on the complete medical record, a statement of accepted facts 

                                                             5 Bernadine P. Taylor, 54 ECAB 342 (2003). 

6 Id.
5

and a thorough clinical examination. Dr. Rouben concurred with Dr. Bloss’ opinion that the 

accepted conditions had ceased. Therefore, OWCP’s March 26, 2014 decision affirming the 

prior termination is appropriate under the law and facts of the case.7

On appeal, counsel contends that OWCP’s March 26, 2014 decision is “contrary to law 

and fact.” As stated above, Dr. Bloss provided well-reasoned reports explaining the medical 

reasons that appellant no longer had residuals of the accepted lumbar injuries as of 

September 22, 2013. Furthermore, Dr. Rouben agreed with Dr. Bloss’ opinion. 

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 in terminating appellant’s 

compensation benefits effective September 22, 2013 on the grounds that an accepted lumbar 

sprain, lumbar contusion, intervertebral disc disorder and aggravation of multilevel lumbar 

degenerative disc disease ceased without residuals. 

                                                             7

 After termination or modification of benefits, clearly warranted on the basis of the evidence, the burden for 

reinstating compensation benefits shifts to the claimant. The Board notes that the medical evidence submitted in 

support of appellant’s request for a review of the written record does not address whether appellant was disabled for 

work on and after September 22, 2013 due to the accepted injuries. Dr. Htin’s medication management notes do not 

address the critical issue of any causal relationship between the accepted injuries and appellant’s condition on and 

after September 22, 2013. In order to prevail, the claimant must establish by the weight of reliable, probative and 

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

compensation benefits See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 

1101 (1992). 
6

ORDER 

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

Compensation Programs dated March 26, 2014 is affirmed. 

Issued: November 19, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board