United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Francisco, CA, Employer 

__________________________________________ 

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Docket No. 15-1160 

Issued: January 11, 2016 

Appearances: Case Submitted on the Record

Mark Coby, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 27, 2015 appellant, through counsel, filed a timely appeal of a December 3, 

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 to consider the merits of the case. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

compensation and medical benefits effective May 13, 2013; and (2) whether appellant has 

established any continuing medical condition or disability on or after May 13, 2013 due to his 

March 9, 1987 employment injury. 

On appeal counsel argues that the second opinion physician’s report was not entitled to 

the weight of the medical evidence, that OWCP failed to adequately weigh the recent reports 

from appellant’s treating physician, and that there remains a conflict of medical opinion 

requiring referral to an impartial medical examiner. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On March 13, 1987 appellant, then a 40-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that on March 9, 1987, as he was stepping out of his truck, 

the step gave way causing him to fall face down injuring his lower back, left shoulder, and hips. 

Appellant’s attending physician, Dr. Sanford H. Lazar, an orthopedic surgeon, examined 

appellant on April 13, 1987. He noted a previous back injury in January 1983 which was still 

causing appellant pain. Dr. Lazar diagnosed degenerative intervertebral disc at L4-5 which had 

been aggravated by the fall at work on March 9, 1987. Appellant underwent a computerized 

tomography (CT) scan on May 18, 1987 which demonstrated disc bulges at L3-4 and L4-5 with 

facet hypertrophy and spinal stenosis. 

OWCP on August 14, 1987 accepted aggravation of an existing disability and on 

April 11, 1988 expanded the acceptance to include aggravation of degenerative disc disease in 

the lumbar spine and sprain of the lumbar back. 

Appellant underwent a magnetic resonance imaging (MRI) scan on December 1, 1988 

which demonstrated mild bulging or protrusion of the L4-5 disc and mild bulging of the L3-4 

disc. 

Appellant was placed on the periodic compensation rolls effective November 14, 1987. 

Dr. Lazar continued to provide treatment for appellant through October 2, 2000 and 

continued to opine that appellant was totally disabled. OWCP referred appellant for a second 

opinion evaluation. On March 19, 2001 Dr. Stanley Baer, a Board-certified orthopedic surgeon, 

diagnosed chronic lumbar strain and disc derangement at L4-5 and L5-S1. He opined that 

appellant was totally disabled and continued to experience residuals of the accepted employment 

injury. Dr. Baer noted that appellant had symptoms of psychological overlay. 

In another second opinion report dated May 17, 2004, Dr. John R. Chu, a Board-certified 

orthopedic surgeon, diagnosed chronic low back pain with a history of degenerative disc disease 

at L3-4, L4-5, and L5-S1. He found no objective signs of neurologic injury, but appellant had a 

significant pain response to light stimulation of appellant’s back which could not be explained on 

an anatomic basis. Dr. Chu opined that appellant sustained a temporary aggravation of his 

underlying degenerative disc disease at L3-4 and L4-5. He reported that appellant could return 

to light-duty work. 

Appellant underwent a lumbar MRI scan on May 28, 2004 which demonstrated an L3-4 

broad-based disc bulge with right lateral protrusion, L4-5 broad-based disc bulge with right 

neural foraminal narrowing, and L5-S1 right paracentral protrusion which contacted the right S1 

nerve root. 

Dr. Michael S. Sutro, a treating Board-certified orthopedic surgeon, examined appellant 

on November 4 and 11, 2004 and diagnosed progressive lumbar and cervical degenerative disc 

disease. He also noted a significant subjective pain response with light stimulation of his back 

which could not be explained on an anatomic basis. Dr. Sutro found that appellant was disabled 

due to chronic pain due to a work-related aggravation of multilevel lumbar degenerative disc 

disease. 
3

OWCP found a conflict of medical opinion regarding appellant’s ability to work and 

referred appellant for an impartial medical examination in 2005 with Dr. Richard R. Tavernetti, a 

Board-certified orthopedic surgeon. In his January 24, 2005 report, Dr. Tavernetti noted that 

appellant’s examination was clouded by an exaggeration of disability and pain. He opined that 

appellant could not return to work for more than two hours a day. Dr. Tavernetti found that 

appellant exhibited residuals of his employment injury which was an aggravation of a preexisting 

condition. 

Dr. Sutro continued to provide medical care and examined appellant on August 10, 2007 

and on March 10, 2008 and diagnosed chronic disabling pain and depression which were 

permanent in nature. He referred appellant to Dr. Arkady Gendelman, a Board-certified family 

practitioner, who completed form reports indicating that appellant could sit up to two hours a 

day, lift two pounds for 30 minutes and drive for a total of one hour. In reports dated 

October 13, and 24, 2011 and July 10, 2012, Dr. Gendelman noted that he began examining 

appellant in 2005 and found appellant disabled due to axial and radicular symptoms of multilevel 

lumbar degenerative disc disease and psychiatric problems. 

OWCP referred appellant for another second opinion evaluation with Dr. Aubrey A. 

Swartz, a Board-certified orthopedic surgeon, on October 23, 2012. In a report dated 

December 30, 2012, Dr. Swartz reviewed appellant’s medical history. He discussed the May 28, 

2004 MRI scan. Dr. Swartz found that appellant was tender and sensitive to light touch on the 

skin of his lumbar spine. He noted that reflexes were absent in the lower extremities and that 

appellant had a burning sensation to pinwheel testing of the left thigh and total hypoesthesia over 

the right thigh and right medial lower leg. Dr. Swartz reported normal motor function in the 

lower extremities, but give-way collapsing weakness with strength testing of the feet and toes. 

He noted that almost every movement brought a response of groaning, moaning, and expressions 

of agony. Dr. Swartz found substantial pain behavior during appellant’s examination. He 

concluded that there were no valid objective findings, but rather substantial pain behavior, with 

exaggerated and magnified responses. 

Dr. Swartz noted that acute pain was brought about by light stimulation of his back and 

body movements which would be considered an example of pain behavior or symptom 

magnification. He noted that appellant’s MRI scan studies had not revealed any nerve root or 

spinal cord compression but consisted of multilevel degenerative disc disease with mild 

protrusion of L3-4 and L5-S1. Dr. Swartz diagnosed resolved strain of the lumbar spine with 

nonindustrially-related underlying and preexisting multilevel degenerative disc disease without 

any neurologic deficit or injury. He opined that appellant’s multilevel disc disease at L3-4 and 

L4-5 with multiple disc bulges, facet hypertrophy, and spinal stenosis were temporarily 

aggravated by his March 9, 1987 employment injury. Dr. Swartz opined that the temporary 

aggravation would not have lasted more than three years and that appellant’s temporary total 

disability would have ceased by March 9, 1990. He reviewed appellant’s date-of-injury position 

and stated that appellant could not currently lift 75 pounds due to his age. Dr. Swartz noted that 

appellant could lift up to 25 pounds for four to six hours a day. 

OWCP proposed to terminate appellant’s medical and compensation benefits in a letter 

dated April 8, 2013. It relied on the findings in Dr. Swartz’ December 30, 2012 report. By 

decision dated May 13, 2013, OWCP terminated appellant’s medical and wage-loss benefits 
4

effective May 13, 2013. Appellant requested an oral hearing before OWCP’s Branch of 

Hearings and Review on May 22, 2013. 

Appellant submitted a report dated July 29, 2013 from Dr. Fred F. Naraghi, a Boardcertified orthopedic surgeon. Dr. Naraghi noted appellant’s history of stepping down from his 

truck when the step broke and reported that appellant flipped and fell backwards. He examined 

appellant and found limited range of motion and pain to palpation in the lumbar spine. 

Dr. Naraghi reported palpable paraspinal muscle spasms with mild decreased light touch 

sensation in the right S1 distribution. He diagnosed herniated nucleus pulposus, radiculopathy 

right lower extremity, lumbar spinal stenosis, and cervical radiculopathy. Dr. Naraghi opined, 

“In absence of evidence to the contrary, it is with reasonable medical probability and more than 

likely that injuries to his neck and back are as a result of his work-related injuries.” He found 

that appellant was permanently disabled. 

Appellant also submitted a report dated August 15, 2013 from Dr. James R. Liles, a 

Board-certified psychiatrist, who diagnosed major depressive disorder and attributed this 

condition to appellant’s employment injuries.2

Dr. Naraghi completed a supplemental report on August 23, 2013 and reviewed the 

medical records. He opined that appellant also sustained a cervical injury in 1987 as a result of 

his fall. 

Appellant testified at the oral hearing on August 29, 2013 and described his ability to 

walk for one block and his necessity to sleep on the floor. He stated that he could drive for about 

20 minutes and performed very limited household chores. Appellant testified that his back pain 

extended into his right hip and leg. 

In a report dated September 26, 2013, Dr. Naraghi reviewed a September 9, 2013 MRI 

scan and found herniated nucleus pulposus at L5-S1 with right S1 nerve root impingement, 

multilevel disc bulges, radiculopathy of the right lower extremity, lumbar spinal stenosis, and 

cervical radiculopathy. 

By decision dated November 20, 2013, OWCP’s hearing representative found that 

OWCP had met its burden of proof to terminate appellant’s compensation benefits in its 

May 13, 2013 decision. She found that Dr. Swartz’ report was entitled to the weight of the 

medical evidence and established that there was no objective evidence of a permanent change in 

appellant’s preexisting degenerative disc disease due to the accepted employment injury. The 

hearing representative further found that Dr. Naraghi’s reports lacked medical reasoning to 

support his opinion that appellant had any ongoing medical condition as a result of the accepted 

employment injury. 

Counsel requested reconsideration through a letter dated February 12, 2014. He argued 

that Dr. Naraghi’s reports created a conflict in medical opinion evidence. In a report dated 

February 10, 2014, Dr. Naraghi noted appellant’s history of injury in 1987 and again noted that 

appellant slipped and fell backwards. He reviewed appellant’s recent MRI scan and found a 

 2

 As OWCP has not issued a final decision regarding appellant’s claim for a psychiatric condition, the Board will 

not address this issue. 20 C.F.R. § 501.2(c). 
5

dorsal annular tear at L4-5 with a disc bulge. Dr. Naraghi diagnosed herniated nucleus pulposus 

of L5-S1 with right nerve root impingement. He opined that this condition was likely a result of 

progression of the pathology that started from the 1987 employment injury. Dr. Naraghi further 

opined that appellant’s symptoms of back pain, right leg pain, and numbness and weakness 

radiating into the lateral aspect of his right foot and plantar aspect of his right foot was a classic 

presentation for right S1 pathology. He noted that appellant had no prior back pain preceding the 

1987 employment injury. Dr. Naraghi opined that appellant’s 1987 fall was a traumatic injury 

and that injury to the disc in 1987 could cause a rapid progression of any degenerative process. 

Appellant underwent a lumbar MRI scan on September 9, 2013 which demonstrated 

degenerative disc disease of the lumbar spine, disc bulges at L3-4, L4-5, and L5-S1. This test 

indicated possible contact with the traversing right S1 nerve root. 

In a decision dated March 6, 2014, OWCP reviewed the merits of appellant’s claim and 

denied modification of its prior decisions. It found that Dr. Naraghi was relying on an inaccurate 

description of the employment injury and appeared to be unaware of appellant’s history of back 

conditions. OWCP further noted that as appellant’s initial MRI scan did not demonstrate a 

herniated disc at L5-S1, a more recent test with this finding would have to be supported by 

medical reasoning explaining how appellant’s 1987 employment injury resulted in an additional 

condition almost 20 years later. 

Counsel requested reconsideration through a form completed on April 15, 2014. OWCP 

received a report dated April 3, 2014 from Dr. Naraghi in which he reviewed a recent 

electromyogram (EMG) test. Dr. Naraghi repeated his version of appellant’s 1987 employment 

fall and stated that it made no difference whether appellant fell backward or forward. He opined 

that the disc bulge found on the MRI scan in 1988 could certainly be within the nomenclature for 

a herniated disc. 

By decision dated December 3, 2014, OWCP reviewed the merits of appellant’s claim 

and denied modification finding that the medical evidence failed to establish medical residuals or 

disability related to his March 9, 1987 employment injury. It found that Dr. Naraghi’s reports 

were not based on an accurate factual background, were not sufficiently detailed, and did not 

create a conflict or overcome the weight of Dr. Swartz’ report. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.3 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.4

 Furthermore, the right to medical benefits for an 

accepted condition is not limited to the period of entitlement for disability.5 To terminate 

 3 Mohamed Yunis, 42 ECAB 325, 334 (1991). 

4 Id.

5 Furman G. Peake, 41 ECAB 361, 364 (1990). 
6

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 -- ISSUE 1 

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

compensation benefits effective May 13, 2013. 

OWCP referred appellant for a second opinion evaluation with Dr. Swartz on 

October 23, 2012. He completed a report dated December 30, 2012, reviewing appellant’s 

history of injury and medical history. Dr. Swartz noted the May 28, 2004 MRI scan with disc 

bulges. On physical examination, he found that appellant was tender and sensitive to light touch 

on the skin of his lumbar spine and that reflexes were absent in the lower extremities. Dr. Swartz 

reported normal motor function in the lower extremities, but give-way collapsing weakness with 

strength testing of the feet and toes. He noted that almost every movement brought a response of 

groaning, moaning, and expressions of agony. Dr. Swartz concluded that there were no valid 

objective findings and that appellant exhibited pain behavior with exaggerated and magnified 

responses. He noted that appellant’s MRI scan studies had not demonstrated any nerve root or 

spinal cord compression but consisted only of multilevel degenerative disc disease with mild 

protrusion of L3-4 and L5-S1. Dr. Swartz diagnosed resolved strain of the lumbar spine with 

preexisting multilevel degenerative disc disease without any neurologic deficit or injury. He 

opined that appellant’s multilevel disc disease at L3-4 and L4-5 with multiple disc bulges, facet 

hypertrophy, and spinal stenosis was temporarily aggravated by his March 9, 1987 employment 

injury. Dr. Swartz opined that the temporary aggravation would not have lasted more than three 

years and that appellant’s temporary total disability would have ceased by March 9, 1990. 

Dr. Swartz reviewed appellant’s date-of-injury position and reported that appellant could lift no 

more than 25 pounds for four to six hours a day due to his age. 

Dr. Swartz’ report is based on an accurate history of injury, a review of the medical 

records, and his findings on physical examination. He found that appellant demonstrated 

symptom magnification and that the temporary aggravation of appellant’s underlying 

degenerative disc disease beginning in 1987 had resolved by 1990. Dr. Swartz found that 

appellant did not require further medical treatment due to the accepted condition and that 

appellant’s continuing disability was not due to his accepted employment injury, but due to his 

age and preexisting degenerative condition. 

At the time Dr. Swartz issued his report there was no contemporaneous, rationalized 

medical evidence supporting appellant’s continued disability and medical residuals due to his 

accepted employment injury. Dr. Gendelman’s reports did not include a detailed history of 

injury, did not acknowledge the accepted condition, and did not provide any medical reasoning 

in support of his diagnosis of axial and radicular symptoms due to multilevel lumbar 

degenerative disc disease and psychiatric problems resulting in total disability. 

For these reasons, the Board finds that OWCP met its burden of proof to terminate 

appellant’s medical and wage-loss compensation benefits effective May 13, 2013. 

 6 Id.
7

LEGAL PRECEDENT -- ISSUE 2 

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

burden shifted to appellant to establish that he had disability causally related to his accepted 

employment injury.7

 To establish a causal relationship between the condition, as well as any 

disability claimed and the employment injury, the employee must submit rationalized medical 

opinion evidence, based on a complete factual background, supporting such a causal relationship. 

Rationalized medical opinion evidence is medical evidence which includes a physician’s detailed 

opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed 

condition and the implicated employment factors. The opinion of the physician must be based 

on a complete factual and medical background of the claimant, 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 claimant. The weight of medical evidence is determined by its reliability, its probative value, 

its convincing quality, the care of analysis manifested, and the medical rationale expressed in 

support of the physician’s opinion.8

 

ANALYSIS -- ISSUE 2 

Following OWCP’s May 13, 2013 termination of appellant’s medical and wage-loss 

compensation benefits, appellant submitted a series of reports from Dr. Naraghi beginning on 

July 29, 2013. He provided a history of injury based on appellant’s recollections that in 1987 

while stepping from the truck the step broke and appellant slipped and fell backwards. 

Dr. Naraghi provided findings on examination including limited range of motion and pain to 

palpation in the lumbar spine as well as palpable paraspinal muscle spasms with mild decreased 

light touch sensation in the right S1 distribution. He opined that appellant’s diagnosed 

conditions including herniated disc were more than likely a result of his work-related injuries. 

The Board finds that this report is not based on an accurate history of injury and does not address 

appellant’s accepted condition of aggravation of underlying degenerative disc disease. The 

report does not contain medical reasoning explaining how Dr. Naraghi reached his conclusions 

based on testing occurring almost 20 years after the employment incident. His report does not 

adequately address the findings by appellant’s previous attending physicians that he had 

preexisting lumbar degenerative disc disease and that this condition was aggravated by 

appellant’s fall in 1987. Due to these deficiencies, these reports are insufficient to establish an 

additional employment injury or to establish continuing disability due to appellant’s March 1987 

employment injury. 

The remainder of Dr. Naraghi’s reports address additional conditions not previously 

accepted by OWCP. On August 23, 2013 Dr. Naraghi reviewed appellant’s medical records and 

opined that appellant also sustained a cervical injury in 1987 as a result of his fall. In his 

September 26, 2013 report, Dr. Naraghi reviewed a September 9, 2013 MRI scan and found 

additional conditions which he opined were employment-related including herniated nucleus 

pulposus at L5-S1 with right S1 nerve root impingement, multilevel disc bulges, radiculopathy of 

the right lower extremity, lumbar spinal stenosis, and cervical radiculopathy. On February 10, 

 7 George Servetas, 43 ECAB 424, 430 (1992). 

8 James Mack, 43 ECAB 321 (1991). 
8

2014 Dr. Naraghi noted appellant’s history of injury in 1987 and again noted that appellant 

slipped and fell backwards. He reviewed appellant’s recent MRI scan and found a dorsal annular 

tear at L4-5 with a disc bulge. Dr. Naraghi diagnosed herniated nucleus pulposus of L5-S1 with 

right nerve root impingement. 

In support of his diagnoses, Dr. Naraghi noted the herniated disc was likely as a result of 

progression of the pathology that started from the 1987 employment injury. He noted that 

appellant had no prior back pain preceding the 1987 employment injury. Dr. Naraghi opined that 

appellant’s 1987 fall was a traumatic injury and that injury to the disc in 1987 could cause a 

rapid progression of any degenerative process. On April 3, 2014 he repeated his version of 

appellant’s 1987 employment fall and wrote that it made no difference whether appellant fell 

backward or forward. Dr. Naraghi opined that the disc bulge found on the MRI scan in 1988 

could certainly also be within the nomenclature for a herniated disc. 

The Board finds that Dr. Naraghi’s reports are insufficient to establish additional 

conditions resulting from appellant’s employment injury in 1987 or to establish continuing 

disability as a result of this injury. Dr. Naraghi does not address the central issue in this case, 

whether the aggravation of appellant’s underlying degenerative disc disease was permanent or 

temporary. The weight of the medical evidence as represented by Dr. Swartz establishes that the 

aggravation was temporary. In order to overcome Dr. Swartz’ report or to create a conflict with 

it, appellant must submit a report which has a clear and detailed factual basis. The 

contemporaneous medical reports describe appellant’s employment incident as well as his 

preexisting degenerative disc condition in 1987. None of the physicians who examined appellant 

prior to Dr. Naraghi opined that appellant had sustained a herniated disc as a result of his 

employment incident and the initial diagnostic studies suggested that his disc disease did not 

extend to L5-S1. Furthermore, Dr. Naraghi’s reasoning in support of his diagnoses, is in direct 

contrast to the accepted condition and the contemporaneous medical evidence. He opines that 

appellant’s 1987 traumatic injury caused an accelerated degenerative process rather than the 

accepted history that appellant had a preexisting degenerative condition which was aggravated 

by the fall. Due to these deficits in the factual and medical history as well as the alteration of the 

underlying basis of appellant’s claim, the Board finds that, contrary to counsel’s arguments on 

appeal, Dr. Naraghi’s reports are insufficient to establish appellant’s claim for continuing 

disability or medical residuals as a result of his accepted 1987 employment injury or to create a 

conflict with Dr. Swartz’ report. 

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 appellant’s medical and 

wage-loss benefits effective May 13, 2013. The Board further finds that appellant has failed to 

meet his burden of proof in establishing any continuing disability, medical residuals, or 

additional conditions as a result of the 1987 employment injury. 
9

ORDER 

IT IS HEREBY ORDERED THAT the December 3, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 11, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board