United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Severna Park, MD, Employer 

__________________________________________ 

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Docket No. 15-0730 

Issued: October 2, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 4, 2014 appellant, through counsel, filed a timely appeal from a 

November 7, 2014 merit decision of the Office of Workers’ Compensation (OWCP) Programs. 

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 the case. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to justify termination of 

appellant’s compensation benefits for his accepted injury effective December 12, 2013; and 

(2) whether appellant established continuing disability or residuals of his accepted conditions 

after December 12, 2013. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On August 27, 2012 appellant, then a 36-year-old letter carrier, injured his back while 

moving bags of mail. OWCP accepted his claim for lumbar sprain. Appellant stopped work on 

August 27, 2012 and did not return. 

Appellant submitted an October 5, 2010 magnetic resonance imaging (MRI) scan of the 

lumbar spine which revealed grade 1 anterolisthesis with bilateral spondylolysis, severe 

biforaminal narrowing at L5-S1, degenerative changes, disc protrusions at L2 through L5, and 

facet arthropathy. A October 26, 2012 lumbar MRI scan showed stable grade 1 anterolisthesis of 

L5 due to bilateral spondylolysis, severe bilateral foraminal narrowing at L5, stable mild bilateral 

foraminal, moderate left lateral recess narrowing at L2-3, annular spondylotic disc bulge, and 

small focal left paracentral disc protrusion. Appellant was treated by Dr. John Barry, a 

Board-certified orthopedic surgeon, from October 8, 2012 to February 25, 2013, for low back 

pain. Dr. Barry reported 10 years of episodic lumbosacral back pain with no prior injury. He 

diagnosed lumbar disc degeneration, lumbosacral radiculopathy, and lumbosacral spondylosis. 

On February 25, 2013 Dr. Barry advised that conservative treatment failed and he recommended 

a laminectomy. 

On March 8, 2013 OWCP referred appellant’s case record to its medical adviser for an 

opinion of whether his condition should be expanded and whether the spinal fusion was needed 

due to the work injury. On March 24, 2013 the medical adviser noted that the October 5, 2010 

MRI scan was about two years before the work injury and, at the time, appellant had both back 

pain as well as right leg radicular pain. An MRI scan was repeated two years later and there 

were no changes noted between the 2010 and the 2012 MRI scan studies. The medical adviser 

opined that based upon these facts, he did not find that surgery was indicated as a result of the 

August 27, 2012 injury. He opined that the lumbar sprain was resolved and the ongoing 

complaints were due to the preexisting history of significant back and leg pain. 

Appellant came under the treatment of Dr. Timothy F. Witham, a Board-certified 

neurosurgeon, on April 24, 2013. He reported initially injuring his back at home in 2010. 

Appellant noted that on August 12, 2012, while lifting and moving mail bundles, he felt a sharp 

and acute back pain. Dr. Witham diagnosed spondylolisthesis with intractable and worsening 

back pain, radiculopathy, and instability. He recommended a L5-S1 decompression and 

discectomy. Dr. Witham noted that appellant continued with residuals of the work injury and he 

believed the proposed surgery was medically necessary due to instability and radiculopathy. An 

April 29, 2013 duty status report diagnosed lumbar spondylosis and noted that appellant was 

totally disabled. A May 6, 2013 lumbar MRI scan revealed bilateral spondylolysis with grade 1 

anterior spondylolisthesis of the L5 vertebra, no significant canal narrowing at L5-S1, moderateto-severe foraminal narrowing bilaterally, compression of the exiting L5 nerve roots, mild 

degenerative changes at L2-5, and a small left herniation at L2-3. 

On June 10, 2013 OWCP referred appellant to Dr. Stuart J. Gordon, a Board-certified 

orthopedic surgeon, to determine if the accepted condition had resolved. In a July 1, 2013 report, 

Dr. Gordon indicated that he reviewed the records provided and examined appellant. He advised 

that appellant had an “extensive” lumbar history going back to a 2003 injury sustained when 

loading a truck and another event in 2010 when he was cutting his toenails. Dr. Gordon noted 
3

findings on examination of full range of motion in the cervical and thoracic spine, pain in the 

lumbar spine, negative straight-leg raise test bilaterally, and intact motor and sensory reflexes. 

He diagnosed preexisting long history of back pain, low-grade spondylolisthesis, preexisting 

degenerative disease of the lumbar spine and spondylolisthesis unrelated to the work injury, 

increased back pain on August 27, 2012, aggravation of preexisting condition, pelvic obliquity 

with right leg shorter than left, and possible spondylitic stenosis at L2-3. Dr. Gordon opined that 

the proposed surgery was not related to the August 27, 2012 work injury, but rather it was related 

to long-standing, preexisting lumbar disease which was previously treated and documented by 

the October 5, 2010 MRI scan. He noted other contributing factors of nonindustrial preexisting 

limb-length discrepancy, multilevel degenerative disease, and preexisting spondylolisthesis. In a 

July 1, 2013 work capacity evaluation, Dr. Gordon noted that appellant could return to work with 

restrictions. 

On July 18, 2013 OWCP requested Dr. Gordon clarify his opinion. In a supplemental 

report dated July 22, 2013, Dr. Gordon advised appellant’s current complaints were the 

progression of preexisting underlying degenerative disease and spondylolisthesis of the lumbar 

spine. He noted that the postinjury MRI scan revealed no significant change in the anatomic 

alignment of the spine and there was no objective evidence of an aggravation beyond the 

subjective reporting. Dr. Gordon opined that the permanent restrictions were based on 

appellant’s preexisting conditions and not the event of August 27, 2012. 

Appellant submitted a July 30, 2013 report from Dr. Witham who noted his opinions 

were in conflict with Dr. Gordon. Dr. Witham opined that objective data showed that appellant’s 

condition was exacerbated following his injury in August 2012. He further noted that imaging 

showed objective instability at the L5-S1 segment after the injury in 2012 that warranted 

approval of surgery. 

OWCP found that a conflict of medical opinion existed between Dr. Witham, who found 

appellant had ongoing work-related residuals including the need for L5-S1 surgery, and 

Dr. Gordon, who opined that appellant’s accepted condition had resolved and that appellant’s 

residuals and the proposed surgery were related to preexisting disease. 

To resolve the medical conflict, on September 12, 2013, OWCP referred appellant to 

Dr. Edward R. Cohen, a Board-certified orthopedic surgeon. In an October 3, 2013 report, 

Dr. Cohen noted reviewing the record, including the history of appellant’s work injury, and 

examining him. He noted appellant’s history was significant for an episode of low back pain 

while loading a truck at work in 2001 or 2002 and in 2010 when he bent over to clip his nails. 

Examination of the back revealed no visible or palpable muscle spasm, mild restriction in 

flexion, moderate restriction in extension, no point tenderness or dysmetria, negative straight leg 

raising test bilaterally, and no localized sensory loss or weakness. Dr. Cohen diagnosed resolved 

back sprain, preexisting multilevel degenerative disc disease, and unrelated symptomatic grade 1 

spondylosis at L5-S1. He concluded that appellant reached maximum medical improvement as it 

related to the work injury. Dr. Cohen opined that appellant sustained a simple sprain which 

resolved and his ongoing back complaints were causally related to long-standing degenerative 

lumbar disc disease, arthritis, and grade 1 spondylolisthesis. He further opined that the ongoing 

disability was caused by the chronic degenerative disc disease and arthritis mentioned above. 

Dr. Cohen noted the surgery recommended was reasonable and necessary, but not causally 
4

related to the work injury. Rather, he opined that the proposed surgery was due to the longstanding degenerative lumbar disc disease, arthritis, and spondylosis. Dr. Cohen noted that 

appellant did not require further evaluation, treatment, or restrictions as it related to the work 

injury. In an OWCP-5 form, he noted that appellant was unable to work due to degenerative and 

congenital spinal disease, but the restrictions were due to his nonwork-related condition. 

Dr. Cohen noted that appellant reached maximum improvement with regard to the August 27, 

2012 work injury. 

 On November 1, 2013 OWCP proposed to terminate all benefits finding that Dr. Cohen’s 

report established no continuing residuals of his work-related lumbar sprain. 

 On November 19, 2013 appellant, through counsel, disagreed with the proposed 

termination and asserted that his condition worsened as a direct result of the accident on 

August 27, 2012. He submitted reports from Dr. Witham dated July 25 and August 14, 2013 

who noted that appellant had clear cut instability and spondylolisthesis that was symptomatic at 

the L5-S1 segment. Dr. Witham noted that, after the August 2012 injury, his diagnosed 

spondylosis and symptoms were more severe. He opined that appellant’s preexisting condition 

was exacerbated by the August 12, 2012 injury and caused instability at the L5-S1 segment 

requiring surgical intervention. Appellant submitted a November 26, 2013 report from a 

physician assistant who diagnosed sciatica due to lumbar disc displacement, thoracic or lumbar 

radiculitis, chronic pain syndrome, spinal stenosis of the lumbar region, and acquired 

spondylolisthesis. 

 In a decision dated December 12, 2013, OWCP terminated appellant’s medical and 

wage-loss compensation benefits effective the same day finding that the medical evidence 

established that he had no continuing residuals of his accepted conditions. 

 On December 23, 2013 counsel requested an oral hearing which was held on 

August 18, 2014. Appellant submitted physical therapy notes from March 5 to 19, 2013. Also 

submitted was a December 31, 2013 report from Dr. Robert Rankin, a Board-certified orthopedic 

surgeon, who treated appellant for back, leg, and muscle pain. Dr. Rankin diagnosed thoracic 

and lumbar radiculitis, sciatica due to displacement of lumbar disc, spinal stenosis of lumbar 

region, acquired spondylolisthesis, and chronic pain syndrome. A January 18, 2014 duty status 

report from Dr. Witham diagnosed exacerbation of spondylolisthesis and noted that appellant 

could not return to work. On April 17, 2014 Dr. Witham noted that due to appellant’s intractable 

mechanical low back pain, new onset of radiculopathy, and new L5-S1 instability after his 

August 27, 2012 injury, he recommended L5-S1 decompression and fusion. He opined to a 

reasonable degree of medical certainty that the August 27, 2012 back injury appellant sustained 

at work was a substantial factor contributing to his spinal condition and required surgery. A 

May 13, 2014 MRI scan of the lumbar spine revealed bilateral spondylosis of L5, bilateral 

foraminal narrowing compounded by right foraminal disc protrusion resulting in flattening of the 

L5 nerve roots, subacute compression deformity of the endplate at L3, and moderate L2-3 

paracentral disc protrusion. 

In a decision dated November 7, 2014, the hearing representative affirmed the 

December 12, 2013 decision. 
5

LEGAL PRECEDENT -- ISSUE 1 

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

of compensation benefits.2

 After it has determined that an employee has disability causally 

related to his or her federal employment, OWCP may not terminate compensation without 

establishing that the disability has ceased or that it is no longer related to the employment.3

 The 

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

disability. To terminate authorization for medical treatment, OWCP must establish that a 

claimant no longer has residuals of an employment-related condition, which requires further 

medical treatment.4

Section 8123(a) provides that, if there is 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.5

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for lumbar sprain. It found that a conflict in medical 

opinion existed between Dr. Witham, appellant’s physician who indicated that appellant had 

disabling residuals of her work injuries and required L5-S1 surgery causally related to the 

August 27, 2012 work injury, and Dr. Gordon, an OWCP referral physician who opined that 

appellant’s accepted condition had resolved and that continuing residuals, disability, and the 

need for surgery were attributable only to his preexisting conditions. Consequently, OWCP 

referred appellant to Dr. Cohen to resolve the conflict. 

 The Board finds that the opinion of Dr. Cohen is sufficiently well rationalized and based 

upon a proper factual background such that it is entitled to special weight to establish that the 

disabling residuals of appellant’s work-related conditions have ceased.6

In an October 3, 2013 report, Dr. Cohen reviewed appellant’s history, noted findings and 

determined that appellant had no objective complaints or findings from the accepted conditions. 

He noted appellant’s history was significant for an episode of low back pain while loading a 

truck at work in 2001 or 2002. Dr. Cohen noted an essentially normal examination with no point 

tenderness or dysmetria, negative straight leg raises bilaterally, and no localized sensory loss or 

weakness. He diagnosed a resolved back sprain, preexisting and unrelated multilevel 

degenerative changes, and grade 1 spondylosis at L5-S1. Dr. Cohen opined that appellant 

sustained a simple sprain which resolved and his ongoing back complaints were the result of 

 2 Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000). 

3 Mary A. Lowe, 52 ECAB 223 (2001). 

4 Id.; Leonard M. Burger, 51 ECAB 369 (2000). 

5

 5 U.S.C. § 8123(a). See Guiseppe Aversa, 55 ECAB 164 (2003). 

6 Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a). Where there exists a conflict of medical opinion 

and the case is referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled to special weight. 
6

chronic long-standing degenerative lumbar disc disease, arthritis, and grade 1 spondylolisthesis. 

He noted appellant’s ongoing disability was caused by the chronic degenerative disc disease and 

arthritis. Dr. Cohen opined that the recommended surgery was the result of long-standing 

degenerative lumbar disc disease, arthritis, and spondylosis and not causally related to the work 

injury. He indicated that appellant did not require further evaluation, treatment, or restrictions as 

it related to the above work injury. In an OWCP-5 form, Dr. Cohen opined that appellant was 

unable to work due to degenerative and congenital spinal disease and any restrictions were due to 

his nonwork-related condition. 

 The Board finds that Dr. Cohen had full knowledge of the relevant facts and evaluated 

the course of appellant’s condition. Dr. Cohen is a specialist in the appropriate field. He did not 

indicate that there was a work-related reason for disability or treatment. Dr. Cohen’s opinion, as 

set forth in his report of October 3, 2013, is found to be probative evidence and reliable. The 

Board finds that his opinion constitutes the weight of the medical evidence and is sufficient to 

justify OWCP’s termination of wage-loss and medical benefits for the accepted conditions. 

Subsequent to Dr. Cohen’s report, appellant submitted reports from Dr. Witham dated 

July 25 to August 14, 2013 which noted that appellant had clear cut instability and 

spondylolisthesis that was symptomatic at the L5-S1 segment. Dr. Witham noted that appellant 

had spondylosis which was more severe following the August 2012 injury. He opined that the 

preexisting condition was exacerbated by the August 12, 2012 injury and caused instability at the 

L5-S1 segment requiring surgery. However, Dr. Witham did not specifically address how any 

continuing condition or medical restrictions were causally related to the accepted August 27, 

2012 employment injury. The Board has found that vague and unrationalized medical opinions 

on causal relationship have little probative value.7

 It is noted that Dr. Witham had been on one 

side of the conflict resolved by Dr. Gordon and his reports are similar to his prior reports and are 

insufficient to overcome that of Dr. Cohen or to create a new medical conflict.8

 

On appeal, appellant, through counsel, argues that Dr. Cohen’s report was vague, and 

insufficient to be the weight of the evidence in terminating appellant’s benefits. He specifically 

asserted that Dr. Cohen’s report did not adequately detail the physical findings and was based on 

an inaccurate factual history. Appellant asserted that he provided abundant medical evidence to 

show his residuals from the work injury and the necessary low back surgery. The Board finds 

that the October 3, 2013 report from Dr. Cohen provided adequate findings on examination. The 

report specifically noted that appellant’s back revealed no visible or palpable muscle spasm, no 

point tenderness or dysmetria, negative straight leg raising and no localized sensory loss or 

weakness. Dr. Cohen found no clinical findings of residuals or disability causally related to the 

accepted back sprain. He explained that appellant’s ongoing back complaints and disability were 

causally related to long-standing degenerative lumbar disc disease, arthritis and grade 1 

spondylolisthesis. Dr. Cohen noted the recommended surgery was reasonable and necessary but 

 7 Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not 

containing rationale on causal relationship are entitled to little probative value). 

8 See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy 

Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Cohen’s reports do not contain new findings or rationale 

upon which a new conflict might be based. 
7

not causally related to the work injury. He found that proposed surgery was necessary because 

of long-standing degenerative lumbar disc disease, arthritis, and spondylosis. The reports from 

Drs. Witham and Rankin, do not explain how any continuing disability was causally related to 

the accepted employment injury. 

Appellant submitted a November 26, 2013 report from a physician assistant. However, 

the Board has held that treatment notes signed by a physician assistant are not considered 

probative medical evidence as these providers are not a physician under FECA.9

 

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 

employment injury.10 To establish causal relationship between the claimed disability and the 

employment injury, appellant must submit rationalized medical opinion evidence based on a 

complete factual and medical background supporting such a causal relationship.11

ANALYSIS -- ISSUE 2 

The Board finds that appellant has not established that he has any continuing residuals of 

his work-related lumbar subluxation, lumbosacral strain/sprain, and left sacroiliac sprain and 

expanded his claim to include left S1 sacroiliitis, on or after December 12, 2013. 

After the termination of benefits on December 12, 2013, appellant submitted a 

January 18, 2014 duty status report from Dr. Witham who diagnosed exacerbation of 

spondylolisthesis and noted that appellant could not return to work. Similarly, in an April 17, 

2014 report, Dr. Witham opined that to a reasonable degree of medical certainty the August 27, 

2012 injury was a substantial factor in contributing to appellant’s spinal condition. However, his 

opinion on causal relationship is similar to his previous opinions on this matter. Submitting a 

report from a physician who was on one side of a medical conflict that an impartial specialist 

resolved is, generally, insufficient to overcome the weight accorded to the report of the impartial 

medical examiner or to create a new conflict.12 

Appellant submitted a December 31, 2013 report from Dr. Rankin who treated him for 

back, leg, and muscle pain. However, Dr. Rankin neither noted a history of injury or the 

employment factors believed to have caused or contributed to appellant’s condition.13 

 9 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical 

therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a 

“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law). 

10 See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001). 

11 Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003). 

12 Jaja K. Asaramo, 55 ECAB 200 (2004); see also supra note 8. 

13 Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are 

speculative or equivocal in character have little probative value). 
8

Additionally, he failed to provide a specific or a rationalized opinion regarding the causal 

relationship between appellant’s thoracic and lumbar radiculitis, sciatic, spinal stenosis, acquired 

spondylolisthesis, and chronic pain syndrome and the factors of employment believed to have 

caused or contributed to such condition.14 

Appellant also submitted physical therapy notes. The Board has held that treatment notes 

signed by a physical therapist are not considered medical evidence as these providers are not 

considered a physician under FECA.15 Additionally, appellant submitted a May 13, 2014 MRI 

scan of the lumbar spine. However, this evidence is of limited probative value as it was not 

accompanied by a physician’s explanation regarding how any medical condition was due to his 

August 27, 2012 work injury. 

Consequently, appellant did not establish that he has any employment-related condition 

or disability after December 12, 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 has met its burden of proof to terminate benefits effective 

December 12, 2013. 

 14 See Jimmie H. Duckett, supra note 7. 

15 See David P. Sawchuk, supra note 9. 
9

ORDER 

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

Compensation Programs dated November 7, 2014 is affirmed. 

Issued: October 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board