United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 14-1912 

Issued: September 22, 2015 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 3, 2014 appellant, through his representative, filed a timely appeal from an 

August 11, 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 properly terminated appellant’s compensation benefits 

effective December 7, 2012 on the grounds that his accepted cervical condition had ceased 

without residuals. 

On appeal, appellant’s representative contends that the second opinion evaluation lacked 

probative value. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

In December 2011, OWCP accepted that appellant, then a 46-year-old mail processing 

clerk, sustained a subluxation at C6-7 due to factors of his federal employment, including 

repetitive loading and sweeping on an automation machine. Appellant received appropriate 

medical and wage-loss compensation benefits. 

OWCP referred appellant to Dr. William Dinenberg, a Board-certified orthopedic 

surgeon, for a second opinion evaluation on July 27, 2012 to determine the nature and extent of 

his employment-related condition. In an August 6, 2012 report, Dr. Dinenberg reviewed a 

statement of accepted facts, history of the injury, and the medical evidence of record and 

conducted a physical examination. He noted that appellant had a history of cervical strain, 

cervical disc syndrome, cervical spondylosis, radiculopathy of the right upper and lower 

extremity, lumbar strain, lumbar disc syndrome, and lumbar herniated disc at L4-5 and L5-S1. 

Upon examination of the cervical spine, Dr. Dinenberg found decreased range of motion. There 

was 20 degrees of flexion, 30 degrees of rotation to the left and right, and 10 degrees of 

extension. Dr. Dinenberg found no radiation of pain with extension or rotation either to left or 

right on the side cervical spine. Appellant had decreased sensation to light touch involving the 

dorsal and plantar surfaces of the right upper extremity in a glove distribution bilaterally. 

Dr. Dinenberg indicated that magnetic resonance imaging (MRI) scan studies dated November 1, 

2011 revealed a two-millimeter posterior subluxation of C6-7. He opined that the subluxation at 

C6-7 was not appellant’s employment-related condition. Dr. Dinenberg opined that appellant 

“sustained a cervical and lumbar sprain/strain as a result of the work injury in October 2011.” 

He indicated that the cervical subluxation at C6-7 was degenerative and anticipated that it would 

be a chronic, long-lasting condition that would most likely progress over time. Dr. Dinenberg 

opined that appellant’s subluxation at C6-7 was “not work related” and indicated that he was 

“unable to cite specific residuals based on the cervical subluxation, as [he did] not feel that this 

[was appellant’s] work-related diagnosis.” 

An electromyography and nerve conduction studies (EMG/NCS) of the upper and lower 

extremities dated August 15, 2012 were abnormal with findings mostly consistent with bilateral 

S1 radiculopathies. 

In a September 13, 2012 addendum report, Dr. Dinenberg reviewed the August 15, 2012 

EMG/NCS and found that they revealed abnormalities with bilateral S1 radiculopathies on the 

lower extremity. No upper extremity abnormalities were noted. Dr. Dinenberg reiterated his 

opinion that appellant’s cervical and lumbar strains were causally related to his federal 

employment. He indicated that these conditions were typically resolved within a 6- to 12-week 

period and, therefore, appellant’s medical restrictions were secondary to his preexisting 

conditions and not to his employment-related cervical or lumbar strains. Dr. Dinenberg opined 

that appellant had reached maximum medical improvement from his employment injury. 

By letter dated October 17, 2012, OWCP notified appellant that it proposed to terminate 

his compensation benefits based on the weight of the medical evidence, as represented by 

Dr. Dinenberg. It afforded him 30 days to submit additional evidence or argument in 

disagreement with the proposed action. 
3

By decision dated December 7, 2012, OWCP terminated appellant’s compensation 

benefits effective that day. It found the weight of the evidence was represented by 

Dr. Dinenberg. 

On December 27, 2012 appellant, through his representative, requested a telephonic oral 

hearing before an OWCP hearing representative, which was held on April 17, 2013. 

By decision dated July 2, 2013, OWCP hearing representative affirmed the December 7, 

2012 termination decision, finding that Dr. Dinenberg represented the weight of the medical 

evidence. 

In a letter received by OWCP on August 13, 2013 appellant, through his representative, 

requested reconsideration. He submitted a position description, a description of the automation 

machine, and illustrations of his duties. Appellant also submitted an April 11, 2014 physical 

capacity evaluation and reports dated August 8, 2013 through February 27, 2014 from 

Dr. Orlando Ruano, a Board-certified psychiatrist, diagnosing major depressive disorder. 

In reports dated August 26 through October 22, 2013, Dr. Claude Barosy, a family 

practitioner, diagnosed chronic cervical strain, cervical disc syndrome, cervical spondylosis most 

pronounced at C5-6 and C6-7, right and left upper extremity radiculopathy, chronic lumbosacral 

strain, lumbar disc syndrome, herniated lumbar disc at L4-5 and L5-S1, bilateral lower extremity 

radiculopathy, “subluxation of C6 on C7 of two millimeters and subluxation of C5 on C6 with 

one millimeter of anterior subluxation, [and] posterior subluxation of L5 on S1 of three 

millimeters.” 

Appellant submitted reports dated March 12, 2013 through April 10, 2014 from his 

attending physician Dr. Samy Bishai, an orthopedic surgeon, who diagnosed chronic cervical 

strain, cervical disc syndrome, cervical spondylosis most pronounced at C5-6 and C6-7, right and 

left upper extremity radiculopathy, chronic lumbosacral strain, lumbar disc syndrome, herniated 

lumbar disc at L4-5 and L5-S1, bilateral lower extremity radiculopathy, “subluxation of C6 on 

C7 of two millimeters and subluxation of C5 on C6 with one millimeter of anterior subluxation, 

[and] posterior subluxation of L5 on S1 of three millimeters.” Dr. Bishai indicated that appellant 

continued to complain of pain in his neck with radiation down the arms, pain in his lower back 

with radiation down the legs, and pain in the upper back between the shoulder blades. 

By decision dated August 11, 2014, OWCP denied modification of its July 2, 2013 

decision. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s 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 

 2 See S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 
4

related to the employment.3

 OWCP’s burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.4

 The 

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

disability.5

 To terminate authorization for medical treatment, OWCP must establish that 

appellant no longer has residuals of an employment-related condition, which would require 

further medical treatment.6

Section 8123(a) of FECA provides in pertinent part: 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.7

 Where a case is 

referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background must be given special weight.8

ANALYSIS 

In December 2011, OWCP accepted appellant’s claim for subluxation at C6-7. It 

subsequently terminated his compensation benefits effective December 7, 2012 based on reports 

from Dr. Dinenberg, a Board-certified orthopedic surgeon serving as a second opinion examiner. 

On appeal, appellant’s representative contends that the second opinion evaluation lacked 

probative value. 

On July 10, 2012 OWCP referred a statement of accepted facts, comprised of a history of 

appellant’s claim and a series of questions to Dr. Dinenberg for second opinion evaluation. The 

statement indicated that appellant sustained an injury to the back, neck, and shoulders as a result 

of his postal duties. It further stated that OWCP accepted the claim for subluxation at C6-7 and 

that appellant had stopped work on October 1, 2011. With regard to the inquiries, it specifically 

asked whether the work-related condition of subluxation at C6-7 had resolved, what are the 

current objective findings, what conditions are related to appellant’s postal duties, whether he 

has any continuing restrictions, and if so are they temporary or permanent. 

In his August 6, 2012 report, Dr. Dinenberg indicated that MRI scan studies dated 

November 1, 2011 revealed a two-millimeter posterior subluxation of C6-7. He determined that 

the subluxation at C6-7 was not appellant’s employment-related condition and opined that 

appellant “sustained a cervical and lumbar sprain/strain as a result of the work injury in 

October 2011.” Dr. Dinenberg concluded that appellant’s subluxation at C6-7 was “not work 

 3 See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

4 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 

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

6 See James F. Weikel, 54 ECAB 660 (2003). 

7

 5 U.S.C. § 8123(a). See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006). 

8 See V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 

215 (1994). 
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related,” indicating that he was “unable to cite specific residuals based on the cervical 

subluxation, as [he did] not feel that this [was appellant’s] work-related diagnosis.” In a 

September 13, 2012 addendum report, Dr. Dinenberg reiterated his opinion that appellant’s 

cervical and lumbar strains were causally related to his federal employment that should have 

resolved with a 6- to 12-week period. 

In his initial report of August 6, 2012, Dr. Dinenberg did not rely on the statement of 

accepted facts in formulating his opinion. He specifically concluded that appellant’s accepted 

employment injury of October 10, 2011 was not the cause of his subluxation at C6-7 and 

attributed the subluxation at that level to a preexisting degenerative condition. 

The Board finds the reports of Dr. Dinenberg to be of diminished probative value. It is 

well established that a physician’s opinion must be based on a complete and accurate factual and 

medical background. When OWCP has accepted an employment condition as occurring in the 

performance of duty, the physician must base his opinion on the accepted facts. 

In Paul King9

 the Board found that the report of an impartial medical examiner who 

disregarded a critical element of the statement of accepted facts was of diminished probative 

value. In King, the impartial medical examiner also disagreed with the medical basis for 

acceptance of a condition. The Board found that this defective report was not sufficient to 

resolve the existing conflict of medical opinion evidence. 

Dr. Dinenberg likewise disregarded the statement of accepted facts and, as in King, did 

not rely on the statement of accepted facts for the determination of the initial injury of a 

subluxation at C6-7. The Board finds that his report is of diminished probative value as his 

opinion disregarded critical elements of the statement of accepted facts and is therefore flawed. 

The Board notes that it is the function of a medical expert to give an opinion only on medical 

questions, not to find facts.10 Dr. Dinenberg disregarded the statement of accepted facts and as 

such his report is not based on an accurate history of injury and is therefore not sufficient to 

resolve the issue relative to OWCP’s burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits.11

For these reasons, the Board finds that Dr. Dinenberg’s reports are of limited probative 

value on the relevant issue of this case and OWCP improperly relied upon his opinion to 

terminate appellant’s compensation benefits. 

 9

 54 ECAB 356 (2003). 

10 Id.

11 Id., see also C.C., Docket No. 13-446 (issued May 15, 2013) (finding that the impartial medical examiner 

disagreed with an accepted condition and that his report was therefore of diminished probative value resulting in an 

unresolved conflict of medical opinion evidence and failure of OWCP to meet its burden of proof to terminate 

compensation benefits). 
6

CONCLUSION 

The Board finds that OWCP improperly terminated appellant’s compensation benefits 

effective December 7, 2012 on the grounds that his accepted cervical condition had ceased 

without residuals. 

ORDER 

IT IS HEREBY ORDERED THAT the August 11, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: September 22, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board