United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, New York, NY, Employer 

__________________________________________ 

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Docket No. 15-1353 

Issued: October 13, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 1, 2015 appellant filed a timely appeal from a May 11, 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 to 

consider the merits of this case.2

ISSUE 

The issue is whether OWCP met its burden of proof to terminate wage-loss compensation 

and medical benefits effective May 11, 2015. 

FACTUAL HISTORY 

OWCP had accepted that appellant, then a 38-year-old correctional officer, sustained 

cervical, thoracic, and lumbosacral sprain/strains causally related to a September 15, 2004 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted additional evidence on appeal. The Board reviews only evidence that was before OWCP at 

the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1). 
2

employment incident. Appellant received wage-loss compensation and medical benefits on the 

periodic rolls commencing October 18, 2004. 

The case has been before the Board on two prior appeals. In a decision dated February 8, 

2012, the Board reversed a May 19, 2011 OWCP decision terminating appellant’s wage-loss 

compensation and medical benefits.3 The Board found that the report of the second opinion 

physician, Dr. William Dinenberg, a Board-certified orthopedic surgeon, did not provide a 

rationalized medical opinion to support his conclusion that the accepted employment-related 

conditions had resolved. The Board therefore concluded that OWCP had not met its burden of 

proof to terminate appellant’s wage-loss compensation and medical benefits. 

Following the Board’s reversal of the first termination decision, OWCP issued a second 

decision dated April 8, 2013 terminating compensation for wage-loss and medical benefits. 

According to OWCP, an August 6, 2012 report from a second opinion physician, Dr. Jonathan 

Black, a Board-certified orthopedic surgeon, was sufficient to terminate compensation. The 

Board reversed this termination by decision dated November 13, 2013.4 The Board found that 

Dr. Black had reported there were no objective findings, but had failed to provide additional 

explanation. Dr. Black had not discussed the diagnostic studies or examination findings with 

respect to his opinion that the record contained no evidence of objective findings to substantiate 

that appellant continued to have residuals of the accepted conditions. The history of the case as 

provided by the Board in its prior decisions is incorporated herein by reference. 

On return of the case record, OWCP referred appellant for a second opinion examination 

by Dr. Fanourious Ferderigos, a Board-certified orthopedic surgeon. In his report dated 

January 24, 2014, Dr. Ferderigos provided a history, review of medical records, and results on 

examination. With respect to the spine he noted that appellant reported complaints of severe 

pain with even a light touch. Dr. Ferderigos reported range of motion results and that appellant 

did not appear to have any severe hypertoxicity on the lumbar spine to correlate with subjective 

findings. He noted that a magnetic resonance imaging (MRI) scan in the office showed 

satisfactory alignment of the cervical and lumbar spine, with no evidence of spondylolisthesis, 

compression fractures, or other osseous abnormality. Dr. Ferderigos opined that there were no 

objective findings for the accepted conditions, only subjective complaints. He opined that the 

accepted conditions had resolved and there were no objective findings to support continuing 

disability. 

By letter dated March 3, 2014, OWCP informed appellant that its procedures required 

that a claimant on prolonged disability submit periodic medical reports to support a claim of 

continuing disability. Appellant was informed that he should be examined by a treating 

physician, following which a current narrative report from the physician regarding the status of 

his accepted work condition should be submitted to OWCP. OWCP did not receive any reports 

from a treating physician following this request. 

On April 7, 2014 OWCP received a March 29, 2014 letter from appellant in which he 

informed appellant of a new address in Lakeland, Florida. 

 3

 Docket No. 11-1565 (issued February 8, 2012). 

4

 Docket No. 13-1217 (issued November 13, 2013). 
3

By letter dated March 26, 2015, addressed to appellant’s last known address in Lakeland, 

Florida, OWCP advised him that it proposed to terminate compensation for wage-loss and 

medical benefits based on the second opinion physician’s report. It indicated that he had 30 days 

to provide additional evidence or argument. 

In a decision dated May 11, 2015, OWCP terminated wage-loss compensation and 

medical benefits. It found the weight of the evidence was represented by Dr. Ferderigos. The 

decision was sent to appellant’s last known address. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation. After it has been determined that an employee has disability 

causally related to his employment, it may not terminate compensation without establishing that 

the disability had ceased or that it was no longer related to the employment.5

 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 require 

further medical treatment.6

ANALYSIS 

In the present case, OWCP accepted that appellant sustained cervical, thoracic and 

lumbosacral sprain/strains causally related to a September 15, 2004 employment incident. It 

referred appellant for a second opinion examination by Dr. Ferderigos. In his January 24, 2014 

report, Dr. Ferderigos provided a complete report with a history, review of medical evidence, and 

results on examination. He opined that appellant had no objective findings of a continuing 

employment-related condition. This is consistent with an earlier August 6, 2012 report from 

Dr. Black, but unlike the report of Dr. Black, the January 24, 2014 report provides supporting 

medical rationale for the opinion. Dr. Ferderigos discussed current MRI scan results and found 

no evidence of spondylolisthesis or other abnormality. In addition to discussing diagnostic 

testing, he noted the physical examination results were limited to subjective findings which were 

not correlated with objective findings. Dr. Ferderigos opined that, based on his examination and 

test results, appellant’s employment-related conditions had resolved. 

The Board finds that the report of Dr. Ferderigos represents the weight of the evidence in 

this case. Appellant did not submit any current medical evidence supporting a continuing 

employment-related condition or disability. It is OWCP’s burden of proof, and for the reasons 

stated, the Board finds that OWCP met its burden of proof to terminate wage-loss and medical 

compensation benefits effective May 11, 2015. 

On appeal, appellant asserts that benefits were terminated before he received the notice of 

proposed termination and final termination decision. The Board notes that the March 26, 2015 

notice of proposed termination and the May 11, 2015 termination decision were sent to 

 5 Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993). 

6 Furman G. Peake, 41 ECAB 361 (1990). 
4

appellant’s last known address in Lakeland, Florida, pursuant to regulations.7

 In the absence of 

evidence to the contrary, it is presumed that a notice mailed to an addressee in the ordinary 

course of business was received by the addressee.8 There was no probative evidence to the 

contrary in this case. The Board finds that the presumption that the notice of proposed 

termination and final decision were properly mailed and received by appellant applies in the 

present case. 

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 

and medical benefits effective May 11, 2015. 

ORDER 

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

Compensation Programs dated May 11, 2015 is affirmed. 

Issued: October 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 7

 20 C.F.R. § 10.127 provides that “[a] copy of the decision shall be mailed to the employee’s last known 

address.” 

8 See Larry L. Hill, 42 ECAB 596, 600 (1991).