United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 15-0985 

Issued: August 21, 2015 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 30, 2015 appellant, through counsel, filed a timely appeal from a 

November 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 compensation benefits effective July 29, 2012 as he no longer had any residuals or 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the November 12, 2014 decision. Since 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 

ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant 

to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2). 
2

disability causally related to his January 14, 2010 employment injury; and (2) whether appellant 

established continuing disability relating to his accepted employment injuries after July 29, 2012. 

FACTUAL HISTORY 

On January 22, 2010 appellant, then a 55-year-old parcel post carrier, filed a traumatic 

injury claim alleging that on January 14, 2010 he fractured his left leg when he fell from the 

loading platform into a truck while loading parcels and packages. He stopped work and 

underwent surgery. OWCP accepted appellant’s claim for left knee tibia plateau fracture. 

Appellant received compensation and was placed on the periodic rolls. 

OWCP referred appellant, along with the statement of accepted facts and medical record, 

to Dr. Robert Orlandi, a Board-certified orthopedic surgeon, for a second opinion examination to 

determine whether appellant continued to suffer from his accepted left leg fracture and whether 

he continued to be disabled from work. In a December 30, 2010 report, Dr. Orlandi reviewed 

appellant’s history and conducted an examination. He reported that appellant’s left knee was 

stable to valgus and varus stress and had good range of motion. Dr. Orlandi reported minor 

atrophy of the left knee but overall good results for the plate internal fixation of the left lateral 

tibial plateau fracture. He stated that appellant’s prognosis was good but that he remained 

temporarily totally disabled from work. Dr. Orlandi recommended physical therapy and a 

follow-up examination in three months. 

Appellant received continued treatment for a left knee effusion related to the left knee 

tibial plateau surgery from his treating physician Dr. Lon Weiner, a Board-certified orthopedic 

surgeon. 

On April 6, 2011 OWCP referred appellant to Dr. Michael Katz, a Board-certified 

orthopedic surgeon, for another second opinion examination. In an April 28, 2011 report, 

Dr. Katz reviewed appellant’s history and medical treatment following the January 14, 2010 

employment injury. Upon examination of appellant’s left knee, he observed no swelling or 

effusion within the knee and no medial or lateral joint line tenderness. Range of motion was 

normal. Dr. Katz stated that, although appellant’s prognosis was good, he had a difficult time 

initiating with his left quadriceps. He recommended physical therapy and an electromyography 

(EMG) examination. Dr. Katz concluded that appellant was not able to work full duty but was 

capable of working five hours a day with limited standing or walking. 

Pursuant to Dr. Katz’s recommendation, appellant was referred to Dr. Michael Carciente, 

a Board-certified neurologist, for EMG testing. In a July 8, 2011 EMG report, Dr. Carciente 

related that appellant suffered a left tibial plateau fracture from a fall on January 14, 2010 and 

underwent surgery. He stated that appellant complained of weakness in the left leg and tingling 

in the left sole since the injury. Dr. Carciente found no evidence of localized nerve injury or 

entrapment neuropathy involving the left lower extremity. He reported that there were some 

nonspecific findings bilaterally which may suggest an underlying mild peripheral neuropathy and 

recommended clinical correlation. 

In an updated April 28, 2011 report, Dr. Katz reviewed the July 2011 EMG report and 

related that there was no clear evidence of localized nerve injury or entrapment. He stated that 
3

there were some nonspecific findings bilaterally, which have suggested mild peripheral 

neuropathy. Dr. Katz opined, however, that based on the testing appellant’s condition was 

expected to resolve in approximately four months as his condition was improving. He 

recommended that appellant be reevaluated in September and continue with physical therapy to 

increase range of motion and strength. 

OWCP referred appellant, together with a statement of accepted facts and the medical 

records, to Dr. Leon Sultan, a Board-certified orthopedic surgeon, for a further review and 

second opinion examination to determine the current extent of his employment-related injuries 

and any continuing disability. In his December 5, 2011 report, Dr. Sultan provided an accurate 

history of appellant’s injury. He reviewed appellant’s medical records and described the medical 

treatment he received. Dr. Sultan related appellant’s complaints of difficulty ascending and 

descending stairs and of tingling over the plantar portion of the left foot. Upon examination of 

appellant’s left knee, he observed a well-healed surgical scar. Dr. Sultan stated that the collateral 

and cruciate ligaments were stressed and found to be intact. Range of motion was normal. 

Dr. Sultan reported that patellofemoral crepitus with motion testing was +1 but the compression 

test was negative. He stated that appellant was able to ambulate without a crutch and his walking 

pattern was slow and steady. Dr. Sultan diagnosed left lateral tibial plateau fracture clinically 

healed after undergoing open reduction, internal fixation and physical therapy. He opined that 

appellant no longer had any residuals of his fracture and did not demonstrate any continuing 

disability. Dr. Sultan explained that orthopedic examination revealed that appellant was 

clinically stable and able to perform the duties of a parcel post carrier. He concluded that 

appellant did not need any additional medical treatment for his accepted condition and that he 

had reached maximum medical improvement. 

In May 24, 2012 work capacity evaluation and attending physician reports, Dr. Weiner 

stated that appellant sustained a left tibial plateau fracture as a result of a January 14, 2010 fall at 

work. He indicated that appellant was not able to perform his usual job but was only capable of 

working in a sedentary position. Dr. Weiner reported that appellant had been disabled since 

January 14, 2010. 

On June 14, 2012 OWCP proposed to terminate appellant’s medical and wage-loss 

compensation benefits based on Dr. Sultan’s December 5, 2011 second opinion report. It 

determined that the weight of the medical evidence rested with Dr. Sultan who determined that 

appellant’s accepted left tibia plateau fracture had resolved and that he was no longer disabled 

from work as a result of his accepted condition. 

Appellant submitted additional reports by Dr. Weiner. In a June 20, 2012 report, 

Dr. Weiner accurately described appellant’s employment injury and the medical treatment he 

received. He stated that radiographs showed a healed fracture, but related that appellant 

continued to complain of weakness of his left quadriceps and tingling in his left foot. Dr. Weiner 

reported that, during the last examination appellant, had continued complaints of weakness and 

could not initiate extension of his left leg. He recommended a neurologic consultation and 

opined that appellant could not return to work until the neurologic evaluation and resolution of 

the problem. 
4

In a June 28, 2012 statement, appellant disagreed with the June 14, 2012 proposal of 

termination. He stated that he still experienced weakness and a tingling sensation in his left foot. 

Appellant reported that he could only ascend and descend the stairs one step at a time. He 

pointed out that there were some nonspecific findings which suggested mild peripheral 

neuropathy and that nerve injury was not ruled out yet. 

By decision dated July 19, 2012, OWCP finalized the termination of appellant’s 

compensation and medical benefits effective July 29, 2012. It determined that the weight of the 

medical evidence rested with Dr. Sultan’s December 5, 2011 report which determined that 

appellant’s employment-related injuries had resolved and that he was capable of returning to 

work.3

 

On July 10, 2013 OWCP received appellant’s request for reconsideration.4 In an attached 

statement, counsel alleged that it should not have relied on the second opinion examination of 

Dr. Sultan because his opinion was based on an incomplete and inaccurate history. He stated 

that Dr. Sultan’s opinion was based solely on the accepted employment injury and not on the 

more significant neurological symptoms that appellant’s physician wanted to be addressed by a 

neurologist. Counsel further contended that Dr. Weiner’s reports established that appellant 

remained disabled from employment due to the employment injury and created a conflict in 

medical opinion regarding whether appellant continued to be disabled as a result of his accepted 

injury. Lastly, he alleged that OWCP failed to develop the evidence by not referring appellant 

for a neurological evaluation. 

In a July 9, 2013 report, Dr. Weiner accurately described the January 14, 2010 

employment injury and reviewed the medical treatment he received. He related that appellant 

had an uneventful postoperative recovery and that radiographs demonstrated that appellant’s 

fracture had healed. Dr. Weiner stated that, since April 2010, appellant had complained of 

weakness of his left quadriceps and tingling at his left foot. He reported that EMG/nerve 

conduction velocity (NCV) examination did not reveal any specific nerve conduction 

abnormalities. Dr. Weiner stated that at the last office visit on June 19, 2012 appellant 

demonstrated continued quadriceps atrophy, severe difficulty initiating left knee extension, and 

paresthesia along the left foot. He opined that appellant’s diagnosis could range from a central 

(primary brain/brain stem), stroke, or other neurologic abnormality despite a negative 

EMG/NCV examination. Dr. Weiner explained that a proper diagnosis could not be made by an 

orthopedic surgeon. He recommended that appellant see a neurologist in order to make a 

diagnosis for his chronic left leg weakness. 

By decision dated September 17, 2013, OWCP denied modification of the July 19, 2012 

denial decision. 

 3

 The Board notes that the July 19, 2012 decision incorrectly referred to Dr. Katz, instead of Dr. Sultan. 

4

 Prior to appellant’s reconsideration request, OWCP received a request for a hearing on August 21, 2012. By fax 

letter dated December 3, 2012, counsel requested a cancellation of the hearing. On December 12, 2012 OWCP 

granted appellant’s request to withdraw his hearing request. 
5

On September 5, 2014 OWCP received appellant’s reconsideration request. Counsel 

stated that a detailed narrative medical report, not previously considered, was being submitted by 

Dr. Weiner, which would establish that appellant continued to suffer disability causally related to 

his January 14, 2010 employment injury. 

In an August 6, 2013 report, Dr. Weiner described the January 14, 2010 employment 

injury and the medical treatment that appellant received. He stated that when he initially 

examined appellant on January 19, 2010 he observed swelling and tenderness over the lateral 

aspect of appellant’s left knee. Dr. Weiner related that x-rays and computerized tomography 

scans revealed a comminuted left lateral tibial plateau fracture which resulted in surgery. He 

reported that appellant followed a standard postoperative recovery schedule and that radiographs 

showed an eventual healed fracture. Dr. Weiner stated that, since an April 20, 2010 examination, 

appellant had complained of left knee discomfort and tingling in addition to weakness of his left 

quadriceps. He reported that at appellant’s last June 19, 2012 examination, he observed 

continued quadriceps atrophy and severe difficulty initiating left knee extension. Dr. Weiner 

explained that appellant’s fracture had healed in an anatomic position but appellant had 

symptoms of persistent weakness of his left quadriceps muscle group and paresthesia of the left 

foot. He explained that appellant’s current primary complaints of left knee and leg weakness 

would cause future sequelae and that altered biomechanics, secondary to motor weakness could 

lead to undue stress. Dr. Weiner opined that, because of appellant’s initial trauma and 

subsequent surgery, he was at high-risk for developing post-traumatic arthritis. He stated that 

appellant could develop inflammation or severe tendinitis as a result of the hardware at the 

lateral proximal tibia and could need further surgery. 

By decision dated November 12, 2014, OWCP denied modification of the September 17, 

2013 decision. 

LEGAL PRECEDENT -- ISSUE 1 

According to FECA, once OWCP accepts a claim and pays compensation, it has the 

burden of justifying termination or modification of an employee’s benefits.5

 OWCP may not 

terminate compensation without establishing that the disability had ceased or that it was no 

longer related to the employment.6

 Its burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.7 The 

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

disability compensation.8 To terminate authorization for medical treatment, OWCP must 

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

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

ECAB 541 (1986). 

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

8 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued 

August 5, 2009). 
6

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

require further medical treatment.9 

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for left tibial fracture. Appellant stopped work and 

received disability and medical benefits. By decision dated July 19, 2012, OWCP terminated his 

medical and disability compensation benefits based on the December 5, 2011 second opinion 

report of Dr. Sultan which concluded that appellant’s accepted condition had resolved and that 

he was no longer disabled due to the January 14, 2010 employment injury. The Board finds that 

it met its burden of proof to terminate appellant’s compensation and medical benefits. 

OWCP referred appellant’s claim to Dr. Sultan for a second opinion examination to 

determine whether appellant continued to suffer residuals of his employment injury and the 

necessity of his medical treatment. In a December 5, 2011 report, Dr. Sultan reviewed 

appellant’s history of injury, medical treatment, and the statement of accepted facts concerning 

the January 14, 2010 injury. Upon examination of appellant’s left knee, he observed normal 

range of motion and stated that collateral and cruciate ligaments were intact. Dr. Sultan reported 

that patellofemoral crepitus with motion testing was +1 but the compression test was negative. 

He stated that appellant was able to ambulate without a crutch and his walking pattern was slow 

and steady. Dr. Sultan diagnosed left lateral tibial plateau fracture clinically healed. He opined 

that appellant no longer had any residuals of his fracture and did not demonstrate any continuing 

disability. Dr. Sultan reported that orthopedic examination revealed that appellant was clinically 

stable and able to perform the duties of a parcel post carrier. 

The Board has held that the weight of the medical opinion is determined by the 

opportunity for and thoroughness of examination, the accuracy and completeness of the 

physician’s knowledge of the facts of the case, the medical history provided, the care of analysis 

manifested and the medical rationale expressed in support of stated conclusions.10 In this case, 

Dr. Sultan accurately described the history of injury and explained that there were no objective 

findings to establish that appellant had any continuing employment-related residuals or disability 

causally related to his accepted left tibial plateau fracture. The Board finds that his opinion is 

detailed, well-rationalized, and based upon a complete and accurate history. Therefore, the 

Board finds that Dr. Sultan’s opinion represents the weight of the medical evidence and 

establishes that appellant no longer had any residuals or disability from his January 14, 2010 

employment injury. 

LEGAL PRECEDENT -- ISSUE 2 

As OWCP met its burden of proof to terminate appellant’s compensation benefits, the 

burden shifted to him to establish continuing disability causally related to his accepted 

 9 James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., Docket No. 08-1822 

(issued August 5, 2009). 

10 See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996). 
7

employment injury.11 To establish a causal relationship between the condition, as well as any 

disability claimed and the employment injury, appellant must establish by the weight of the 

reliable, probative, and substantial evidence that he had an employment-related disability, which 

continued after termination of compensation benefits.12

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.13 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and the 

specified employment factors or incident.14 The opinion of the physician must be based on a 

complete factual and medical background of the employee, must be one of reasonable medical 

certainty, and must be supported by medical rationale explaining the nature of the relationship 

between the diagnosed condition and the specific employment factors identified by the 

employee.15 

ANALYSIS -- ISSUE 2 

The Board further finds that appellant has not established continuing disability causally 

related to his January 14, 2010 employment injury. 

Following the termination of his benefits by OWCP, appellant submitted various reports 

by Dr. Weiner dated May 14, 2012 to August 6, 2013. Dr. Weiner stated that appellant sustained 

a left tibial plateau fracture on January 14, 2010 when he fell at work and remained totally 

disabled. In a July 9, 2013 report, he related that since April 2010 appellant had also complained 

of weakness of his left quadriceps and tingling in his left foot. Dr. Weiner explained that, 

although the last EMG/NCV examination did not reveal any specific nerve conduction 

abnormalities, appellant’s diagnosis could vary from central brain condition, stroke, or other 

neurologic abnormality. In an August 6, 2013 report, he reported that although appellant’s 

fracture had healed in an anatomic position he still had symptoms of persistent weakness of his 

left quadriceps muscle group and paresthesia at the left foot. Dr. Weiner explained that 

appellant’s current primary complaints could cause future sequelae and that altered 

biomechanics, secondary to motor weakness, could lead to undue stress. He opined that because 

of appellant’s initial trauma and subsequent surgery he was at high risk for developing posttraumatic arthritis. 

 11 Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 

424, 430 (1992). 

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

13 I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009); 

D.I., 59 ECAB 158 (2007). 

14 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989). 

15 D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007); Solomon Polen, 51 ECAB 

341 (2000). 
8

The Board notes that Dr. Weiner provided an accurate history of injury and examination 

findings. Although he opines that appellant remained disabled since January 2010, Dr. Weiner 

relates appellant’s current inability to work to the symptoms of weakness and tingling and the 

development of post-traumatic arthritis. Neither of these conditions have been accepted as work 

related.16 The Board notes that Dr. Weiner acknowledges that appellant’s left tibial plateau 

fracture had healed. Dr. Weiner failed to explain, based on medical rationale, how appellant was 

unable to work as a result of his accepted left leg condition. A claimant is only entitled to 

compensation for as long as he can establish that his disability or necessity of medical treatment 

is causally related to the accepted employment injury.17 Because Dr. Weiner fails to relate 

appellant’s inability to work to his accepted condition, his opinion fails to demonstrate that 

appellant remained disabled from work. Further, as to Dr. Weiners suggestion of possible 

further sequelae, the Board has consistently held that the possibility of a future injury does not 

constitute an “injury” under FECA.18

On appeal, counsel alleges that Dr. Weiner’s August 6, 2013 report establishes that at the 

time of the termination of benefits, appellant continued to suffer disability causally related to his 

employment. As previously noted Dr. Weiner’s opinion is of limited probative value and is 

insufficient to establish that appellant remained unable to work as a result of the January 14, 

2010 employment injury. 

Accordingly, OWCP has met its burden of proof to establish that appellant no longer 

continues to suffer residuals of his accepted January 14, 2010 left leg injury. There is no medical 

evidence contemporaneous with the termination of his benefits which supports that he has any 

continuing residuals related to his accepted condition. Accordingly, the Board finds that OWCP 

properly terminated appellant’s right to compensation and medical benefits. 

CONCLUSION 

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

wage-loss and medical benefits effective July 29, 2012. The Board also finds that appellant 

failed to establish that he had any continuing residuals or disability causally related to his 

accepted employment injuries after July 29, 2012. 

 16 The Board noted that Dr. Weiner’s opinion that appellant suffers from these conditions is offered in speculative 

terms and thus of diminished probative value. Kathy A. Kelly, 55 ECAB 206 (2004). 

17 Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 

424, 430 (1992). 

18 Barbara A. Dunnavant, 48 ECAB 517 (1997). 
9

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: August 21, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board