United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Scranton, PA, Employer 

__________________________________________ 

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Docket No. 15-1296 

Issued: October 21, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 20, 2015 appellant, through counsel, filed a timely appeal from a May 7, 2015 

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 and medical benefits as of June 20, 2014 for the accepted condition of 

lumbosacral strain; and (2) whether appellant has established that he had disability or residuals of 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence to the record following OWCP’s May 7, 2015 

decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of its final 

decision. 20 C.F.R. § 501(c)(1). 
2

his accepted lower back condition following the termination of compensation benefits on 

June 20, 2014. 

FACTUAL HISTORY 

On March 8, 2011 appellant, a 43-year-old environmental maintenance technician, 

injured his lower back when the chair on which he was sitting slipped from beneath him and he 

struck the floor. He filed a claim for compensation benefits, which OWCP accepted for 

lumbosacral sprain. OWCP subsequently accepted the condition of adjustment reaction with 

physical symptoms. Appellant stopped working on March 11, 2011 and OWCP commenced 

payment for wage-loss compensation on the supplemental roll. 

In a March 17, 2011 report, Dr. Ben Mobo, Board-certified in internal medicine and 

occupational medicine, stated that appellant had experienced severe lower back pain since the 

March 8, 2011 employment injury. He advised that he previously sustained a back injury in 

2007 that was treated conservatively. Dr. Mobo asserted that appellant likely had 

musculoskeletal lower back pain, with mild spasm, which constituted an aggravation of his 

preexisting 2007 injury. He diagnosed lumbosacral strain/sprain. Dr. Mobo advised that 

appellant was totally impaired and unlikely to attain gainful employment. 

In an April 26, 2012 report, Dr. Mobo stated that appellant underwent a magnetic 

resonance imaging (MRI) scan, the results of which showed a mild L4-5 disc herniation on the 

left, without significant compromise of the central canal or neural foramina, and mild L5-S1 

degenerative disc disease without significant central canal stenosis or neural foraminal stenosis. 

He opined that appellant was totally impaired and disabled from gainful employment at that 

time. 

In a November 1, 2013 report, Dr. Mobo stated that appellant continued to have 

complaints of low back pain. He advised that his pain had increased by 30 percent since his 

previous visit. Appellant described the pain as aching, dull, pulsating, burning, cramping, 

spasming, and continuous, radiating to the right and left of midline across the lumbar spine; he 

rated the pain as a seven on a scale of one to ten on average a ten out of ten at worst. Dr. Mobo 

advised that appellant had increased low back pain with physical activity, especially when 

standing for long periods of time. He stated that he was currently not working and remained on 

disability. 

Dr. Mobo diagnosed chronic lumbosacral sprain, lumbar intervertebral disc disorder and 

L5-S1 discogenic pain. He asserted that appellant had a history of L5-S1 disc herniation. 

Dr. Mobo noted that he had been treating appellant for a significant amount of time and advised 

that it was readily apparent that he was in constant pain, which affected his daily life activities. 

He advised that his recent increased, significant bilateral L5-S1 low back pain was consistent 

with L5-S1 recurrent disc herniation. Dr. Mobo recommended decreased physical activity to 

reduce appellant’s back pain, at which time he would consider a course of physical therapy and a 

possible referral to a neurologist to consider if he would benefit from a spinal cord stimulator 

trial. He opined that appellant’s current medical condition was directly and causally related to 

his March 8, 2011 work injury. Dr. Mobo stated that his prognosis was poor and that his 

impairment/disability was chronic and permanent. He concluded that, within a reasonable 
3

degree of medical certainty, appellant was permanently and totally disabled from any type of 

gainful employment. 

To determine appellant’s current condition and ascertain whether he still suffered 

residuals from his accepted conditions, OWCP referred appellant for a second opinion 

examination with Dr. Robert J. Smith, Board-certified in orthopedic surgery. In a December 9, 

2013 report, Dr. Smith reviewed the medical history and the statement of accepted facts, stated 

findings on examination and concluded that appellant had no residuals from the March 8, 2011 

employment injury. He advised that his clinical examination was benign and that his ongoing 

symptoms of disabling back pain were difficult to explain given the lack of objective pathology. 

Dr. Smith stated that appellant’s gait and station were normal, with no requirement for aides to 

ambulation or bracing; his back had no findings of any spasm, atrophy, trigger points or 

deformity. He advised that his active spinal range of motion was satisfactory and functional 

without any spasm or rigidity. Dr. Smith asserted that his neurologic examination was 

completely normal from an objective standpoint, that he was fully recovered from the March 8, 

2011 work injury and at maximum medical improvement with no need for additional treatment 

or testing. He opined that the only accepted condition in this case was a lumbar sprain, which, 

based on the current clinical examination, had completely recovered without discernable 

objective residuals. Dr. Smith concluded that there was no identifiable, ongoing pathology from 

the March 8, 2011 work incident which would prevent him from returning to regular, full-time 

duty. 

On January 30 and February 6, 2014 OWCP issued notices of proposed termination of 

compensation to appellant. It found that the weight of the medical evidence, as represented by 

the opinion of Dr. Smith, the second opinion physician, established that his accepted, 

lumbosacral sprain/strain had resolved and that he had no residuals from the March 8, 2011 work 

injury. OWCP allowed appellant 30 days to submit additional evidence or legal argument in 

opposition to the proposed termination. 

In a February 27, 2014 report, Dr. Mobo essentially reiterated his previous findings and 

conclusions. In an April 16, 2014 report, Dr. Mobo advised that appellant’s condition was 

stable, had “plateaued,” and that it was no longer necessary to treat him on a regular basis. 

By decision dated June 20, 2014, OWCP terminated appellant’s wage-loss and medical 

benefits, pertaining to the accepted lumbosacral strain, finding that Dr. Smith’s referral opinion 

represented the weight of the medical evidence. It also related in this decision that it had 

accepted the condition of adjustment reaction with physical symptoms. Appellant continued to 

receive wage-loss and medical benefits for this condition. 

By letter dated June 23, 2014, appellant, through counsel, requested an oral hearing, 

which was held before an OWCP hearing representative on February 12, 2015.3

 

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 Appellant submitted a number of progress notes and narrative reports from Dr. Harry A. Doyle, a Boardcertified forensic psychiatrist, dating from June 2014. Dr. Doyle reviewed the medical evidence of record and his 

own mental status examination findings. He related that appellant had moderate anxiety and depression, as well as 

somatic preoccupation. Dr. Doyle diagnosed chronic pain disorder, chronic adjustment disorder, and lumbosacral 

joint/ligament sprain, right sciatica. He concluded that appellant remained totally disabled from his employment due 

to a combination of residual physical and psychiatric impairments. 
4

By decision dated May 7, 2015, an OWCP hearing representative affirmed the June 20, 

2014 termination decision. She noted that counsel had confirmed during the hearing that 

appellant continued to receive wage-loss and medical benefits for his accepted psychiatric 

condition. 

LEGAL PRECEDENT -- ISSUE 1 

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 -- ISSUE 1 

In this case, OWCP accepted that appellant sustained lumbosacral strain when he fell 

from a chair at work on March 8, 2011 and that this injury caused disability. It based its decision 

to terminate appellant’s wage-loss and medical benefits, for the accepted condition of 

lumbosacral strain, on the opinion of Dr. Smith, the referral physician. The Board finds that 

OWCP met its burden of proof to terminate wage-loss compensation and medical benefits as the 

weight of the medical evidence establishes that appellant no longer has residuals of the accepted 

lumbosacral strain. 

OWCP in its June 20, 2014 decision relied on the December 9, 2013 report of Dr. Smith, 

the referral examiner, to find that appellant’s accepted lumbar strain condition had ceased and 

that he no longer had any residuals from this condition. Dr. Smith asserted that his neurologic 

examination was completely normal from an objective standpoint and that he had fully recovered 

from the March 8, 2011 work injury, with no need for additional treatment or testing. He opined 

that the only accepted lower back condition in this case was a lumbar sprain, which, based on the 

current clinical examination, had completely recovered without discernable objective residuals; 

he advised that his ongoing symptoms of disabling back pain were difficult to explain given the 

lack of objective pathology. 

Appellant’s treating physician, Dr. Mobo, diagnosed chronic lumbosacral sprain and 

lumbar intervertebral disc disorder. He stated in his November 1, 2013 report and focused on the 

 4 Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989). 

5 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

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

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

Guesford, 53 ECAB 727 (2002). 

8 See A.O., Docket No. 15-995 (issued September 11, 2015). 
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fact that appellant had a history of L5-S1 disc herniation and that his recent increased, significant 

L5-S1 low back pain was consistent with L5-S1 recurrent disc herniation, which was directly and 

causally related to his March 8, 2011 work injury; as a result appellant was permanently and 

totally disabled from any type of gainful employment. OWCP, however, has never accepted any 

condition other than lumbosacral sprain/strain. 

The Board finds that Dr. Smith’s referral opinion, which focused on whether appellant 

continued to have residuals from his accepted lumbar sprain/strain condition, the only accepted 

lower back condition in this case, established that appellant was no longer disabled and had no 

residuals from his accepted lumbar sprain/strain condition. OWCP met its burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits, which were paid based upon 

the accepted condition. Dr. Smith’s opinion is based upon current examination findings and 

sufficiently probative, rationalized, and based upon a proper factual background. Therefore, 

OWCP properly found that Dr. Smith’s referral opinion established that appellant no longer had 

residuals of the accepted lumbosacral sprain. 

LEGAL PRECEDENT -- ISSUE 2 

Following a proper termination of compensation benefits, the burden of proof shifts back 

to the claimant to establish continuing employment-related disability.9

ANALYSIS -- ISSUE 2 

Appellant must establish that he is still entitled to compensation for continuing disability 

due to the accepted employment injury based on the medical evidence of record. To meet his 

burden of proof, appellant submitted reports from Dr. Mobo to establish that he had a herniated 

disc condition causally related to the accepted injury, which caused disability. 

Dr. Mobo’s opinion that appellant had a lumbar disc herniation caused by the March 8, 

2011 work injury, is not sufficiently rationalized for expansion of the claim. His initial report of 

March 17, 2011 only diagnosed lumbosacral strain/sprain. Dr. Mobo has never offered a fully 

rationalized opinion explaining how appellant would have sustained a herniated disc from falling 

off his chair on March 8, 2011. This explanation is especially important given that appellant had 

a previous back injury in 2007. A claimant has the burden of establishing by the weight of the 

reliable, probative, and substantial evidence that a claimed medical condition was caused by the 

employment incident. The opinion of the physician must be based on a complete factual and 

medical background, 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 compensable employment incident.10 

On appeal, counsel contends that OWCP erred by crediting the opinion of Dr. Smith, the 

referral physician. He asserts that Dr. Mobo’s opinion was entitled to greater weight than that of 

Dr. Smith because he provided a more accurate description of the mechanism of injury, in 

addition to physical findings based on his examination of appellant and findings consistent with 

 9 John F. Glynn, 53 ECAB 562 (2002). 

10 See T.H., 59 ECAB 388 (2008). 
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MRI scan results; counsel also asserts that Dr. Smith did not actually physically examine 

appellant. Counsel further contends that Dr. Smith’s December 9, 2013 report was lacking in 

rationale and that Dr. Mobo provided a more detailed and comprehensive opinion regarding 

appellant’s current condition. The Board does not accept counsel’s argument. Contrary to 

counsel’s contention, Dr. Smith performed a thorough physical examination of appellant and 

provided findings based on his examination. As noted above, Dr. Smith’s opinion was probative 

and well rationalized. 

Appellant did not provide a probative medical opinion as to whether he was disabled or 

currently required medical treatment due to an alleged employment-related herniated lumbar disc 

condition. For the reasons discussed above, appellant did not meet his burden of proof. Thus the 

Board will affirm the hearing representative’s May 7, 2015 decision. 

CONCLUSION 

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

compensation benefits, for the accepted lumbosacral strain as of June 20, 2014. The Board 

further finds that appellant has not met his burden to establish continuing employment-related 

disability. 

ORDER 

IT IS HEREBY ORDERED THAT the May 7, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: October 21, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board