United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.P., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Edison, NJ, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1163 

Issued: October 8, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 23, 2014 appellant, through counsel, filed a timely appeal from a January 15, 

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. 

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation effective July 28, 2013. 

FACTUAL HISTORY 

On September 16, 2005 appellant, then a 48-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that she sustained a back injury on September 5, 2005 while sweeping a 

 1

 5 U.S.C. § 8101 et seq. 
2

sorting machine. OWCP accepted a lumbar sprain with lumbosacral/thoracic neuritis/radiculitis. 

On August 28, 2006 appellant underwent an epidural injection performed by Dr. Sayed Bakhaty, 

an anesthesiologist. She received wage-loss compensation as of August 28, 2006. 

In a report dated January 24, 2007, Dr. Bakhaty advised that a lumbar provocative 

discography at L3-4, L4-5 and L5-S1 was performed. On February 21, 2007 Dr. Bakhaty 

performed an L5-S1 microdiscectomy. By report dated November 28, 2007, Dr. Bakhaty noted 

that appellant underwent surgery that day for an L4-5 and L5-S1 disc decompression. 

OWCP referred appellant to Dr. Sarveswar Naidu, a Board-certified orthopedic surgeon, 

for a second opinion evaluation. In his report date May 27, 2008, Dr. Naidu provided a history 

of injury, results on examination and opined that appellant had no residuals of the employment 

injury. 

Following a notice of proposed termination dated October 27, 2008, by decision dated 

December 3, 2008, OWCP terminated appellant’s compensation for wage-loss and medical 

benefits effective December 21, 2008. 

After a hearing request by appellant’s counsel, in a decision dated July 13, 2009, an 

OWCP hearing representative reversed the termination decision. He found that Dr. Naidu had 

not been advised that the three 2007 surgeries were considered work related, and therefore his 

opinion was not based on an accurate medical background. 

OWCP referred appellant to Dr. Barry Koffler, a Board-certified orthopedic surgeon, for 

a new second opinion evaluation. In a report dated October 13, 2009, Dr. Koffler opined that 

appellant’s initial lumbar strain had resolved. Appellant’s ongoing back pain was a residual of 

the underlying degenerative disc disease and spinal stenotic changes. 

On January 12, 2010 OWCP proposed to terminate appellant’s monetary compensation 

based on the report of Dr. Koffler. In a report dated February 26, 2010, Dr. M. Dalton Hanowell, 

a Board-certified anesthesiologist, provided a history and results on examination. He stated that 

appellant’s radicular pain in her right leg might be a combination of scar tissue from her previous 

surgeries, as well as irritation of the L5 nerve root from disc herniations. 

By decision dated April 1, 2010, OWCP terminated wage-loss compensation and medical 

benefits effective April 11, 2010. It found that Dr. Koffler represented the weight of the medical 

evidence. 

Following a second request for a hearing, by decision dated May 18, 2010, an OWCP 

hearing representative reversed the termination decision. He found that OWCP had not asked 

Dr. Koffler whether appellant had residuals of the accepted conditions or from the authorized 

surgical procedures. The hearing representative noted Dr. Hanowell’s reference to scar tissue 

from prior surgeries. 

OWCP prepared a new statement of accepted facts and requested Dr. Koffler to provide a 

supplemental medical opinion. In a report dated July 7, 2010, Dr. Koffler stated that there was a 

paucity of physical findings on examination. He stated that it was impossible to determine 
3

whether any residuals were related to the degenerative disc disease, stenotic changes or the prior 

surgeries. 

On January 7, 2013 OWCP referred appellant for another second opinion examination by 

Dr. Eric Furie, an orthopedic surgeon. In his report dated January 29, 2013, Dr. Furie reviewed a 

history of injury and medical treatment. He reviewed x-rays of the pelvis and lumbar spine and 

did not find any objective evidence on physical examination or x-ray that prevented appellant 

from returning to her date-of-injury position. Dr. Furie advised that there were no work 

restrictions and appellant had reached maximum medical improvement. 

In a supplemental report dated March 21, 2013, Dr. Furie advised that appellant had 

undergone an electromyogram (EMG) on March 11, 2013, which showed a chronic L4-5 

radiculopathy. He noted that she reported a loss of sensation in her left thigh, but no loss of 

sensation in the leg or foot, which would more likely be associated with an L4-5 radiculopathy. 

Dr. Furie concluded that the results of the EMG would not limit appellant from the physical 

duties previously outlined. 

OWCP requested an additional report from Dr. Furie, addressing the issue of whether 

appellant had any residuals from the three approved surgeries. In a response dated May 3, 2013, 

Dr. Furie stated that appellant had subjective complaints regarding lumbar sprain and lumbar 

radiculitis, but physical examination did not reveal any objective findings. He noted that 

appellant’s injury was eight years old and there did not appear to be any objective findings to 

treat. Dr. Furie found that appellant was capable of performing the job duties of mail processing 

clerk. As he had stated earlier, the EMG study and sensory loss findings did not correlate. 

By letter dated May 30, 2013, OWCP proposed to terminate compensation for wage loss 

based on the weight of the evidence of record. It found that Dr. Furie’s reports represented the 

weight of the evidence. In a letter dated June 7, 2013, appellant, through her representative, 

argued that Dr. Furie’s reports were insufficient to terminate compensation. 

In a decision dated July 18, 2013, OWCP terminated wage-loss compensation effective 

July 28, 2013. 

Appellant requested another hearing before an OWCP hearing representative, which was 

held on November 8, 2013. On December 4, 2013 appellant submitted a brief report from 

Dr. Hanowell, dated September 23, 2013. He stated that appellant could return to work without 

restriction. In a report dated January 4, 2014, Dr. Alison Hanowell, also a Board-certified 

anesthesiologist, provided results on examination. Dr. A. Hanowell stated that medial branch 

nerve blocks were scheduled to help relieve pain. 

By decision dated January 15, 2014, the hearing representative affirmed the July 18, 2013 

termination decision. He found that the weight of the evidence was represented by Dr. Furie. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation. After it has been determined that an employee has disability causally related to 
4

his or her employment, OWCP may not terminate compensation without establishing that the 

disability had ceased or that it was no longer related to the employment.2

 

ANALYSIS 

In the present case, OWCP terminated wage-loss compensation effective July 28, 2013. 

The July 18, 2013 decision and the May 30, 2013 notice of proposed termination specifically 

noted that the decision did not terminate appellant’s medical benefits. 

The Board finds that the weight of the medical evidence rests with the second opinion 

physician, Dr. Furie. In reports dated January 29, March 21 and May 3, 2013, Dr. Furie 

reviewed a complete and accurate background and provided a reasoned medical opinion that 

appellant could perform her date-of-injury position. Dr. Furie noted the lack of objective 

findings based on physical examination and reviewed the diagnostic studies. He determined that 

appellant’s accepted condition had resolved and the EMG findings did not correlate to physical 

findings based on the physical examination. Dr. Furie concluded that she could return to her 

date-of-injury position. The Board notes that there is no contemporaneous medical evidence 

from an attending physician that discussed a continuing employment-related disability. Prior to 

the termination, the last report from Dr. M. Hanowell was a May 25, 2011 report noting that 

appellant had received a lumbar medial branch nerve block. On September 23, 2013 

Dr. Hanowell briefly indicated that appellant could return to work without restriction, without 

discussing the interim period. 

On appeal, counsel argued that Dr. M. Hanowell agreed that appellant still had disabling 

residuals of the employment injury. It is not clear to what specific report appellant is referring. 

Dr. Hanowell did not provide medical reports regarding her condition. Counsel also argued that 

Dr. Furie did not explain his conclusion as to lack of physical findings. He provided findings 

such as loss of sensation, but stated that the EMG study and sensory loss findings did not 

correlate. Dr. Furie did explain that L4-5 radiculopathy was normally associated with leg or foot 

sensory deficit, not the thigh as reported by appellant. He clearly stated that, based on his 

examination and the diagnostic testing, there were insufficient objective findings to establish 

disability. 

The Board finds that OWCP met its burden of proof to terminate compensation for wage 

loss effective July 28, 2013. 

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 wage-loss compensation 

effective July 28, 2013. 

 2 Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503. 
5

ORDER 

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

Compensation Programs dated January 15, 2014 is affirmed. 

Issued: October 8, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board