United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.A., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

SHIPYARD, Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 14-1138 

Issued: September 9, 2014 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

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 14, 2014 appellant, through his attorney, filed a timely appeal from a 

December 23, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) 

terminating 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. 

ISSUE 

The issue is whether OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits effective January 12, 2014 on the grounds that he no longer had any residuals or 

disability causally related to his accepted employment-related injuries. 

On appeal, counsel contends that the medical report of an OWCP referral physician is not 

entitled to the weight of the medical evidence as the statement of accepted facts provided to him 

contained an inaccurate summary of the accepted conditions. The record indicated that 

 

 1 5 U.S.C. § 8101 et seq.
2

appellant’s claim was originally approved for aggravation of preexisting spondylosis, but this 

condition did not appear in the statement of accepted facts reviewed by the referral physician 

who stated that the condition was not work related. Counsel contends that Dr. Smith’s opinion 

incorrectly stated that no electromyogram/nerve conduction velocity (EMG/NCV) diagnostic 

testing was performed while there were references to such testing in pre-1998 medical reports of 

record. He states that the test results were missing from the record. Counsel also contends that 

appellant’s claim should have been accepted for aggravation of degenerative disc disease as 

found in an October 23, 1991 report of Dr. Richard S. Meyer, a Board-certified orthopedic 

surgeon and an impartial medical specialist, which served as a basis for appellant’s referral to 

vocational rehabilitation services. He contends that the record is incomplete as it does not 

contain a statement of accepted facts prepared prior to 1998 which was referenced by numerous 

referral physicians. 

FACTUAL HISTORY 

OWCP accepted that on January 25, 1982 appellant, then a 43-year-old painter, sustained 

employment-related back sprain and thoracic or lumbosacral neuritis or radiculitis not otherwise 

specified when he slipped on ice on a dock at work. He stopped work on January 26, 1982 and 

returned to work on April 24, 1984. Appellant sustained a recurrence of disability on 

May 4, 1984. He did not return to work. OWCP paid him compensation for total disability. 

The record contains a FECA Nonfatal Summary (Form CA-800) and statement of 

accepted facts dated May 7, 1998 which report that appellant’s accepted conditions were lumbar 

contusion, aggravation of preexisting spondylosis, chronic lumbosacral and musculoskeletal 

strain and lumbar radiculitis. 

In a May 9, 2013 report, Dr. Scott Kurzrok, an attending family practitioner, noted that 

appellant sustained a work-related back injury on January 25, 1982. He began treating appellant 

two years prior for chronic and ongoing back pain. Dr. Kurzrok reported that a physical 

examination of the lumbar spine showed limited range of motion and paravertebral muscle 

spasm bilaterally. He advised that appellant was unable to work at that time. Dr. Kurzrok 

concluded that his prognosis remained guarded to return to the workplace. 

By letter dated August 1, 2013, OWCP referred appellant, together with a statement of 

accepted facts and case record, to Dr. Robert H. Smith, a Board-certified orthopedic surgeon, for 

a second opinion to determine whether he continued to have residuals of his approved workrelated conditions. The August 1, 2013 statement of accepted facts provided to Dr. Smith stated 

that “this statement of accepted facts supersedes all previous versions.” The employment-related 

conditions were listed as back sprain and thoracic or lumbosacral neuritis or radiculitis not 

otherwise specified. 

In an August 30, 2013 report, Dr. Smith reviewed the statement of accepted facts and 

appellant’s case record. He also reviewed a history of his medical treatment for his accepted 

lumbar contusion, and chronic lumbosacral and musculoskeletal strain. Dr. Smith noted that 

appellant’s case was subsequently revised to include lumbosacral neuritis or radiculitis, although 

there was nothing in the file or by his recollection to indicate that he had neurodiagnostic or 

electrodiagnostic testing to confirm this latter diagnosis. He further noted that appellant’s 
3

current complaint of sensation of pressure and spasm in the back with some radiation to the right 

leg. On physical examination, Dr. Smith reported that appellant was alert, oriented and in no 

acute distress. His gait and station were satisfactory, noting that he walked for exercise. 

Appellant used a lumbar support that was removed for the examination. He occasionally used a 

cane. There was no finding of any chronic or acute spasm of appellant’s back. Motion of the 

lumbar spine was satisfactory without any spasm or rigidity being present. 

Dr. Smith reported a completely normal neurologic examination. He stated that, although 

doctors who examined appellant in the past believed appellant had a herniated disc with 

radiculitis, appellant had essentially normal magnetic resonance imaging (MRI) scan studies of 

the lumbar spine in September 19872

 and March 1993. Both studies showed some mild 

desiccation of the lower lumbar discs consistent with degenerative disease, but there was no 

evidence of any herniation at any level. Dr. Smith noted Dr. Kurzrok’s May 9, 2013 finding of 

back spasm, but stated that no neurological deficit was recorded. He advised that of the accepted 

conditions in this case, appellant’s back sprain had long since resolved based on his current 

examination. After a diligent search on clinical examination, there was no evidence that he had 

any chronic or acute spasm about his back related to the remote incident in 1982. There was also 

no evidence, either clinical or from electrodiagnostic testing, that appellant had any lumbosacral 

neuritis or radiculitis related to this incident. Dr. Smith advised that the only established 

diagnosis in this instance would be a back sprain directly caused by the incident in question. 

However, he opined that this condition had long since resolved since it happened 20 years ago 

and currently appellant had a benign examination with no adverse soft tissue abnormalities about 

his spine or any neurological deficit of an objective nature. Appellant did have some 

degenerative change in his spine according to the most recent MRI scan study that was done 

many years ago. Based on the accepted condition which appeared to have completely resolved 

or never existed, Dr. Smith found that appellant could return to regular-duty work. However, 

because of his age-related debility, appellant would be capable of only performing light-duty 

work with restrictions. Dr. Smith opined that future treatment was not required. He concluded 

that based on his benign examination, appellant did not suffer any objective residuals from the 

January 25, 1982 work incident which happened more than 20 years ago and was accepted as a 

lumbosacral strain. 

In a September 9, 2013 report, Dr. Kurzrok listed physical examination findings and 

diagnosed a lumbar strain. 

On November 22, 2013 OWCP issued a notice of proposed termination of appellant’s 

wage-loss compensation and medical benefits based on Dr. Smith’s medical opinion. Appellant 

was advised that he had 30 days to submit additional evidence in response to the proposed 

termination. 

In a December 2, 2013 letter, appellant disagreed with OWCP’s proposed action. He 

contended that Dr. Smith did not conduct a thorough medical examination. Appellant claimed 

that he continued to be totally disabled for employment. 

 2

 The record does not contain a September 1987 lumbar MRI scan, but a September 29, 1999 lumbar MRI scan 

demonstrated disc desiccation and was otherwise negative. 
4

In a December 23, 2013 decision, OWCP finalized the termination of appellant’s 

compensation benefits effective January 12, 2014. It found that the opinion of Dr. Smith 

constituted the weight of the medical evidence.3 

LEGAL PRECEDENT 

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

termination or modification of an employee’s benefits.4

 It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.5 

The 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 compensation.7 To 

terminate authorization for medical treatment, OWCP must establish that appellant no longer has 

residuals of an employment-related condition, which require further medical treatment.8

ANALYSIS 

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

wage-loss compensation and medical benefits as of January 12, 2014. 

OWCP accepted that appellant sustained back sprain, thoracic or lumbosacral neuritis or 

radiculitis not otherwise specified while in the performance of duty. On December 23, 2013 it 

issued a decision terminating his compensation for total disability and medical treatment based 

upon the report of Dr. Smith, an OWCP referral physician, who found that appellant’s 

employment-related back sprain had resolved and he could return to light-duty work with 

restrictions not related to this accepted injury. Dr. Smith noted that appellant did not sustain any 

lumbosacral neuritis or radiculitis related to his employment factors. His opinion is not well 

rationalized and is not based on an accurate factual foundation. The Board notes that OWCP 

accepted that appellant sustained back sprain, thoracic or lumbosacral neuritis or radiculitis not 

otherwise specified. The Board instructed Dr. Smith to determine whether appellant had 

continuing residuals of his accepted conditions. Contrary to the statement of accepted facts, 

Dr. Smith found that appellant’s lumbosacral neuritis or radiculitis conditions were not caused by 

 3

 Following the issuance of OWCP’s December 23, 2013 decision, OWCP received additional evidence. The 

Board cannot consider evidence for the first time on appeal which was not before OWCP at the time it issued the 

final decision in the case. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); 

Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 

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

5 Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 

ECAB 541 (1986). 

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

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

8 A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K. 

Guesford, 53 ECAB 727 (2002). 
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factors of his employment. Having accepted lumbosacral neuritis or radiculitis as work-related 

conditions, OWCP erred in relying on a report from a physician whose opinion regarding the 

issue of whether appellant’s accepted conditions had ceased, disregarded the accepted 

conditions. It is well established that medical reports must be based on a complete and accurate 

factual and medical background; medical opinions based on an incomplete or inaccurate history 

are of diminished probative value.9

 The Board finds, therefore, that OWCP erred by terminating 

appellant’s compensation in its December 23, 2013 decision. The Board will reverse OWCP’s 

determination terminating appellant’s wage-loss compensation and medical benefits. 

Counsel contended that Dr. Smith’s opinion incorrectly stated that no EMG/NCV 

diagnostic testing was performed while there were references to such testing in pre-1998 medical 

reports of record. He asserted that the test results were missing from the record. Dr. Smith 

referenced the results of pre-1988 EMG/NCV studies in his report. However, as found, his 

opinion regarding appellant’s continuing employment-related residuals and disability is of 

diminished probative value as it was not based on an accurate factual background. 

Counsel further contended that appellant’s claim should have been accepted for 

aggravation of degenerative disc disease based on the October 23, 1991 report of Dr. Meyer, an 

impartial medical specialist, which served as a basis for appellant’s referral to vocational 

rehabilitation services.10 The Board notes that the issue is whether OWCP properly terminated 

appellant’s compensation benefits on the grounds that he no longer had any residuals or 

disability causally related to his back sprain, thoracic or lumbosacral neuritis or radiculitis, the 

conditions accepted by OWCP. The Board does not have jurisdiction over whether appellant has 

sustained other conditions causally related to the accepted employment injuries on appeal. 

CONCLUSION 

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

and medical benefits. 

 9 Douglas M. McQuaid, 52 ECAB 382 (2001). 

10 The Board notes that Dr. Meyer’s report is not contained in the case record. 
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ORDER 

IT IS HEREBY ORDERED THAT the December 23, 2013 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: September 9, 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