United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 14-1234 

Issued: September 26, 2014 

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 5, 2014 appellant, through her attorney, filed a timely appeal from a 

November 12, 2013 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 March 6, 2013. 

FACTUAL HISTORY 

On December 14, 2009 appellant, then a 51-year-old letter carrier, slipped and fell to the 

ground, injuring his low back. He filed a claim for benefits, which OWCP accepted for lumbar 

 1

 5 U.S.C. § 8101 et seq. 
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strain. Appellant stopped work and received temporary total disability compensation from 

OWCP. He returned to full-time light duty with restrictions on March 16, 2010. 

In an April 13, 2010 report, Dr. Marc J. Levine, a treating physician Board-certified in 

orthopedic surgery, stated that appellant continued to experience back pain with some radiation 

down his right leg. Appellant tried physical therapy but did not attain any lasting relief. He was 

not able to walk as much as he did in the past but was still working light duty. Dr. Levine 

advised that radiographic tests showed no evidence of significant instability at the L5-S1 level, 

though they did indicate that he had grade 1 to 2 L5-S1 spondylolisthesis. He recommended that 

appellant undergo a course of epidural steroid injections. 

In order to determine appellant’s residuals from his accepted condition, OWCP referred 

him for a second opinion examination to Dr. David Rubinfeld, Board-certified in orthopedic 

surgery. In an October 13, 2010 report, Dr. Rubinfeld reviewed the medical history and the 

statement of accepted facts and listed findings on examination. He opined that the objective 

findings on examination did not support any continuing disability from the accepted lumbar 

strain and that the accepted condition had resolved. Dr. Rubinfeld advised that appellant had 

degenerative disease and spondylolisthesis of the low back but these conditions were not 

causally related to the accepted condition. He found that appellant had no work restrictions 

stemming from the December 14, 2009 work injury and required no additional medical treatment 

or diagnostic tests for the accepted lumbosacral sprain condition. 

In a report dated December 23, 2010, Dr. Levine advised that appellant continued to 

work light duty at the employing establishment with restrictions. He experienced an 

exacerbation of his lower back discomfort the previous day and was awaiting approval for back 

surgery. Dr. Levine reiterated that the diagnoses of L5 bilateral spondylolysis and grade 1 to 2 

L5-S1 spondylolisthesis. He placed appellant off work until January 4, 2010 and prescribed 

medication for his back spasms. 

On January 24, 2011 OWCP issued a notice of proposed termination of appellant’s 

medical benefits and eligibility for receipt of disability compensation. It found that the weight of 

the medical evidence was represented by Dr. Rubinfeld’s opinion and established that the 

accepted lumbar strain condition had resolved without any work-related residuals. 

By decision dated March 2, 2011, OWCP terminated appellant’s compensation. 

On March 10, 2011 appellant, through his attorney, requested an oral hearing which was 

held on June 10, 2011. 

In a May 20, 2011 report, Dr. Levine reviewed x-rays, a computerized axial tomography 

scan and a magnetic resonance imaging scan of the lumbar spine. He opined that appellant had 

an L5 bilateral spondylolysis with a grade 1 to 2 L5-S1 spondylolisthesis. Dr. Levine disagreed 

with Dr. Rubinfeld’s opinion, stating that his December 23, 2010 report did not reveal a thorough 

understanding of appellant’s medical condition. He asserted that Dr. Rubinfeld described an L5 

bilateral spondylosis condition, which referred to a degenerative process and/or arthritic process 

of the spine. Dr. Levine stated that appellant actually had an L5 bilateral spondylolysis, a 

different pathology. He advised that a spondylolysis was a defect or abnormality in the pars 
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interarticularis and was responsible for appellant’s grade 1 to 2 L5-S1 spondylolisthesis. 

Dr. Levine stated that this was the pathology that was causing appellant’s current pain complex. 

He stated that this condition existed for many years prior to appellant’s current injury but was 

asymptomatic until the December 14, 2009 work injury. Dr. Levine advised that Dr. Rubinfeld 

did not take into consideration the full extent of this condition in rendering his opinion, did not 

review all of appellant’s diagnostic tests and incorrectly opined that this condition was not 

causally related to appellant’s work injury. He stated: 

“In summary, it is my belief with a reasonable degree of medical certainty and 

based upon the information that has been provided that [appellant] is having 

ongoing pain from an injury that he sustained at the workplace when he fell down 

steps while carrying mail. [Appellant’s] diagnosis is that of an L5 bilateral 

spondylolysis and a grade 1 to 2 spondylolisthesis. While this pathology was 

present prior to his injury, it was asymptomatic and did not become symptomatic 

until he injured himself at the workplace. It is my belief that [appellant] has made 

every effort to utilize pain management and physical therapy techniques to 

alleviate his ongoing discomfort. If he chooses to proceed with surgical 

intervention, I do believe that this would be causally related to his workers’ 

compensation injury.” 

By decision dated September 7, 2011, an OWCP hearing representative set aside the 

March 2, 2011 termination decision. He found a conflict in medical opinion between Dr. Levine 

and Dr. Rubinfeld as to whether appellant had residuals of his accepted lumbar strain injury. The 

hearing representative remanded the case for referral to an impartial medical specialist to resolve 

the conflict. 

OWCP referred appellant to Dr. Gregory S. Maslow, a Board-certified orthopedic 

surgeon, for an impartial medical evaluation. In a report dated December 20, 2011, Dr. Maslow 

stated that appellant sustained a lumbar sprain in the presence of a preexistent lumbar 

spondylosis on December 14, 2009. While appellant continued to be symptomatic, his present 

symptom complex was causally related to the preexistent spondylosis. Dr. Maslow opined that, 

while appellant had no evidence of a neurologic deficit, but his back condition would not be 

cleared without surgical intervention. He concluded that appellant could perform full-time work, 

with lifting restrictions. On January 5, 2012 OWCP requested that Dr. Maslow clarify his report 

as to whether appellant’s accepted lumbar sprain had resolved, his spondylosis was aggravated 

by the employment incident and whether appellant had any disability remaining due to the 

December 14, 2009 injury. On January 12, 2012 Dr. Maslow responded that appellant had a 

preexisting lumbar spondylolysis which was aggravated by the December 14, 2009 incident; 

however, the aggravation was temporary. He concluded that appellant’s work restrictions were 

due the structural spinal abnormality that existed prior to December 14, 2009. 

By decision dated March 7, 2012, OWCP terminated appellant’s compensation benefits. 

It found that the report of Dr. Maslow, the impartial medical examiner, was well reasoned and 

established that appellant’s accepted lumbar condition had ceased without disability causally 

related to the December 14, 2009 injury. 
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On March 12, 2012 appellant requested a hearing before an OWCP hearing 

representative. 

By decision dated September 13, 2012, an OWCP hearing representative set aside the 

March 7, 2012 termination of appellant’s compensation benefits, for referral to a new impartial 

medical specialist. He found that Dr. Maslow’s report was not well rationalized or sufficient to 

establish that appellant’s current condition was unrelated to the work injury and that there were 

no objective findings to support continuing disability. 

OWCP referred appellant to Dr. Thomas J. O’Dowd, Board-certified in orthopedic 

surgery, for a referee medical examination. In a December 11, 2012 report, Dr. O’Dowd stated 

that appellant sustained a lumbar strain/sprain as noted by the statement of accepted facts which 

had long since resolved and also had a preexisting, chronic, underlying spinal defect which made 

him prone to recurrent episodes of back pain with little or no inciting causes. He stated that the 

condition of spondylolysis at L5 which resulted in a grade 1 to 2 spondylolisthesis was 

previously symptomatic and most likely the reason for appellant’s continuing ongoing symptom 

complex. Dr. O’Dowd noted Dr. Levine’s opinion that this was an exacerbation of his 

underlying problem, but stated that without studies showing a worsening of the problem or 

progression of the problem directly after the injury, it did not constitute an exacerbation of the 

accepted injury. He stated that it was difficult to blame appellant’s ongoing symptoms to a 

single episode of trauma. 

Dr. O’Dowd explained that appellant’s lumbar strain/sprain and underlying 

spondylolisthesis were different conditions. The ongoing symptom complex was related to 

appellant’s underlying spinal deformity, while the lumbar strain had long since resolved. This 

was especially true given that the patient had previous symptoms and previous trauma. With 

regards to his work-related lumbar strain/sprain, appellant was capable of returning to his 

previous employment, but his present right knee condition, together with his underlying 

spondylolisthesis, caused him to be out of work for the past year; the right knee problem was 

severe enough that he was being considered for a knee replacement and was the main reason 

appellant was currently not able to perform light-duty work. Dr. O’Dowd reiterated that, while 

the spondylolisthesis was persistently symptomatic, it was not caused by a single episode of 

trauma. He also had a residual symptom complex which was primarily due his underlying 

spondylolysis and spondylolisthesis at L5-S1, resulting in mechanical back pain which was not 

work related and not due to his December 2009 work injury. Dr. O’Dowd recommended surgery 

to ameliorate appellant’s persistent discomfort and underlying, preexisting spinal deformity. 

On February 4, 2013 OWCP issued a notice of proposed termination of compensation. It 

found that the weight of the medical evidence, as represented by Dr. O’Dowd’s impartial 

opinion, established that his accepted lumbar strain condition had ceased and he had no 

work-related residuals from this condition. 

By decision dated March 6, 2013, OWCP terminated appellant’s medical benefits and 

eligibility for wage loss, finding that Dr. O’Dowd’s impartial opinion represented the weight of 

the medical evidence. 
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On April 3, 2013 appellant, through his attorney, requested an oral hearing, which was 

held on August 13, 2013. 

By decision dated November 12, 2013, an OWCP hearing representative affirmed the 

March 6, 2013 termination decision. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.2

 The right to 

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

compensation for disability. To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which 

requires further medical treatment.3

Section 8123(a) provides that, if there is a disagreement between the physician making 

the examination for the United States and the physician of the employee the Secretary shall 

appoint a third physician who shall make an examination.4

 It is well established that, when a 

case is referred to an impartial medical specialist for the purpose of resolving a conflict, the 

opinion of such specialist, if sufficiently well rationalized and based on a proper factual and 

medical background, must be given special weight.5

ANALYSIS 

The Board finds that OWCP met its burden of proof to terminate appellant’s 

compensation benefits. 

In a December 11, 2012 report, Dr. O’Dowd found that appellant’s December 14, 2009 

lumbar strain had resolved. Appellant had a preexisting, chronic, underlying spinal defect which 

made him prone to recurrent episodes of back pain with little or no inciting causes; a 

spondylolysis at L5-S1 which resulted in a grade 1 to 2 spondylolisthesis. Dr. O’Dowd opined 

that, without studies showing a worsening or progression of the problem immediately following 

the injury, there was no exacerbation of appellant’s preexisting lumbar condition by the accepted 

lumbar strain injury. He did not believe that the spondylolisthesis was related to a single episode 

of trauma; as the lumbar strain and the underlying spondylolisthesis were different conditions. 

Dr. O’Dowd’s ongoing symptom complex was related to his underlying spinal deformity, while 

the lumbar strain had long since resolved. With regard to his work-related lumbar strain, 

appellant was capable of returning to his previous employment, but he was disabled due to a 

right knee condition and the underlying spondylolisthesis. OWCP relied on Dr. O’Dowd’s 

 2 Mohamed Yunis, 42 ECAB 325, 334 (1991). 

3 I.J., 59 ECAB 408 (2008). 

4 Regina T. Pellecchia, 53 ECAB 155 (2001). 

5 Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001). 
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opinion in its March 6, 2013 decision, finding that appellant had no continuing disability or 

residuals causally related to his lumbar strain condition. 

On appeal, counsel argues that Dr. O’Dowd’s impartial medical report was insufficiently 

rationalized and does not merit the special weight of a referee medical examiner. He contends 

that Dr. O’Dowd was not provided with the proper legal framework to determine causation under 

FECA and failed to thoroughly analyze the factual and medical evidence within the proper legal 

context. Counsel asserts that appellant’s December 2009 work injury aggravated his underlying 

spondylolysis and spondylolisthesis conditions and that Dr. O’Dowd should have found that 

these conditions were work related. He attributes appellant’s continuing disability and residuals 

to the December 2009 employment injury. Counsel asserted that OWCP should have requested 

clarification from Dr. O’Dowd on this issue. 

The Board finds that Dr. O’Dowd’s impartial opinion negates the causal relationship 

between appellant’s spondylolisthesis defeat and disability related to his employment. The 

medical evidence establishes that appellant no longer has any residuals from his accepted lumbar 

strain condition. The issue of causation must be based on the medical evidence of record. 

Dr. O’Dowd’s opinion is sufficiently probative, rationalized and based upon a proper factual 

background. OWCP properly accorded his opinion the special weight of an impartial medical 

examiner.6

 The Board finds that Dr. O’Dowd’s opinion constituted the weight of medical 

opinion and supports OWCP’s March 6, 2013 decision to terminate appellant’s compensation 

benefits. 

The Board will affirm OWCP’s hearing representative’s November 12, 2013 decision. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate appellant’s 

compensation benefits. 

 6 Gary R. Seiber, 46 ECAB 215 (1994). 
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ORDER 

IT IS HEREBY ORDERED THAT the November 12, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 26, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board