United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.D., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION, Tallahassee, FL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1615 

Issued: April 19, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 28, 2016 appellant filed a timely appeal from a June 2, 2016 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 501.3,2 the Board has jurisdiction 

over the merits of this case. 

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s medical 

benefits, effective November 16, 2014, because she no longer had residuals of the accepted 

employment-related conditions. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted additional evidence with her appeal to the Board. The Board’s review is limited to 

evidence which was before OWCP at the time of its last merit decision. Thus, the Board is precluded from 

reviewing the additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 

(issued December 5, 2012). 
2

On appeal appellant asserts that OWCP had not reviewed the medical evidence as 

ordered by the Board on March 10, 2016, including reports from Dr. Christopher S. Rumana, an 

attending Board-certified neurosurgeon, and Dr. Joshua E. Fuhrmeister, an attending physician 

Board-certified in anesthesiology and pain medicine. 

FACTUAL HISTORY 

This case has previously been before the Board.3

 The facts and circumstances outlined in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows. 

On January 5, 2010 appellant, then a 49-year-old laundry supervisor, filed a traumatic 

injury claim, alleging that she was injured when she fell to the floor at 10:30 a.m. that day. 

OWCP assigned the claim File No. xxxxxx486. Appellant returned to regular-duty work on 

March 1, 2010 and submitted claims for compensation (Forms CA-7) for intermittent periods of 

disability beginning February 23, 2010. By decision dated April 30, 2010, OWCP denied her 

claim, finding that the evidence of record failed to establish an injury in the performance of duty. 

Appellant requested a review of the written record from OWCP’s Branch of Hearings and 

Review. In a September 28, 2010 decision, an OWCP hearing representative affirmed the 

April 30, 2010 denial of appellant’s claim. Following a November 12, 2010 reconsideration 

request, OWCP issued a merit decision dated February 3, 2011, also denying modification of the 

prior decisions. 

Appellant appealed to the Board. In a November 23, 2011 decision, the Board vacated 

the February 3, 2011 OWCP merit decision and remanded the case for referral to an appropriate 

Board-certified specialist for an examination, diagnosis and a rationalized opinion as to whether 

appellant sustained an injury on January 5, 2010 and, if so, whether she had any concurrent 

disability from work on or after that date.4 

On remand, OWCP referred appellant to Dr. R. Derry Crosby, a Board-certified 

osteopath specializing in orthopedic surgery, for a second opinion evaluation. In a February 27, 

2012 report, Dr. Crosby described the January 5, 2010 employment injury and appellant’s 

complaints of intermittent pain and swelling in the upper back and cervical spine areas. He 

noted his review of the medical record and indicated that physical examination produced no 

strong radicular pain to the right and left upper extremities, with normal strength testing and 

reflexes, and no marked tenderness found on examination of paraspinal musculature. Dr. Crosby 

obtained x-rays of the cervical and thoracic spines, and advised that these showed no spondylosis 

or foraminal canal encroachment. He opined that appellant probably sustained cervical and 

thoracic strains on January 5, 2010 and had appropriate treatment for the conditions. Dr. Crosby 

noted that appellant was under treatment for a low back condition and that no treatment was 

indicated for her neck and thoracic region. He advised that appellant had no disability or need 

for restricted duty as far as the neck or thoracic spine was concerned. In an April 19, 2012 

 3

 Docket No. 11-1166 (issued November 23, 2011); Docket No. 13-1940 (issued August 4, 2014); Order 

Remanding Case, Docket No. 15-1403 (issued March 10, 2016). 

4

 Docket No. 11-1166 (issued November 23, 2011). 
3

supplemental report, Dr. Crosby advised that, while appellant sustained cervical and thoracic 

strains on January 5, 2010, the conditions had resolved at the time of his examination on 

February 27, 2012. 

By decision dated May 11, 2012, OWCP denied appellant’s claim. 

In a September 4, 2012 report, Dr. Rumana noted appellant’s chief complaint of neck and 

right arm pain, low back and leg pain. He reported that appellant had a slip and fall at work in 

2010. On neck examination, Spurling’s and Lhermitte’s signs were negative. Dr. Rumana 

diagnosed thoracic myofasciitis/sprain and neck pain, and indicated that appellant could be 

experiencing myofascial neck pain or right cervical radiculopathy. 

On January 22, 2013 OWCP accepted sprains of the thoracic region of the back and of 

the neck.5

 It paid intermittent wage-loss compensation for 33.25 hours. By decision dated 

March 28, 2013, OWCP terminated any future wage-loss compensation and medical benefits, 

effective February 27, 2012, finding that the weight of the medical evidence rested with the 

opinion of Dr. Crosby. 

Appellant again appealed to the Board. In an August 4, 2014 decision, the Board found 

that OWCP had met its burden of proof to terminate her future wage-loss compensation, 

effective February 27, 2012, because she no longer had employment-related disability. The 

Board found, however, that OWCP had failed to meet its burden of proof to terminate appellant’s 

medical benefits because it had not provided her with a pre-termination notice.6

On September 30, 2014 OWCP issued a notice of proposed termination of medical 

benefits and future wage-loss compensation, based on the opinion of its referral physician 

Dr. Crosby who advised that appellant no longer had residuals of the accepted neck and thoracic 

sprains. By decision dated November 14, 2014, it terminated appellant’s medical benefits and 

future wage-loss compensation, effective November 16, 2014, finding that the weight of the 

medical opinion evidence rested with Dr. Crosby. 

Appellant timely requested a review of the written record before OWCP’s Branch of 

Hearings and Review and submitted additional evidence. Treatment notes dated September 4 

and October 22, 2012 from Dr. Rumana noted a chief complaint of neck and right arm pain, low 

back and leg pain, and reported that appellant had a slip and fall at work in 2010. A report from 

Dr. Fuhrmeister discussed neck examination findings and diagnosed thoracic myofasciitis/sprain 

and neck pain. He indicated that appellant could be having myofascial neck pain or right 

cervical radiculopathy and recommended a cervical magnetic resonance imaging (MRI) scan. In 

December 11, 2012 to July 28, 2014 reports, Dr. Fuhrmeister noted a two-year history of neck 

pain which could be related to a work injury, and that appellant had been in a motor vehicle 

accident in 2002. He described her complaints of neck and back pain and muscle aches and 

indicated that examination of the cervical spine demonstrated mild tenderness and mild-to-

 5

 The record also indicates that appellant has a separate claim, assigned File No. xxxxxx606 accepted for 

aggravation of lumbar radiculopathy on September 8, 2005. 

6

 Docket No. 13-1940 (issued August 4, 2014). 
4

moderate limitation of range of motion. Dr. Fuhrmeister noted that a November 9, 2012 cervical 

spine MRI scan showed minor disc bulging with no significant foraminal narrowing. He opined 

that appellant’s pain was likely multifactorial, including cervical radiculitis and chronic 

cervicothoracic spasms. Dr. Fuhrmeister performed cervical epidural steroid injections on 

December 13, 2012 and March 21, 2013. 

By decision dated May 27, 2015, an OWCP hearing representative affirmed the 

November 14, 2014 termination decision, finding that the weight of the medical evidence rested 

with the opinion of Dr. Crosby. 

On June 15, 2015 appellant appealed to the Board. She also submitted additional medical 

evidence to OWCP following the May 27, 2015 decision. In a treatment note dated February 24, 

2015, Dr. Rumana noted appellant’s continued complaint of neck pain. He noted his review of 

medical records including a November 9, 2012 MRI scan of the cervical spine that he 

characterized as essentially normal with no signs of obvious disc herniation, or nerve root or 

spinal cord compression. The neck was supple on examination, and Spurling’s maneuvers were 

negative. Dr. Rumana diagnosed neck pain and described appellant’s medication regimen. He 

referred her to Dr. Fuhrmeister for further treatment. In a May 20, 2015 report, Dr. Fuhrmeister 

noted appellant’s complaint of neck pain and reviewed medical records. He noted cervical 

tenderness on examination with stable range of motion and no scapular winging. 

Dr. Fuhrmeister diagnosed brachial neuritis or radiculitis, not otherwise specified. On June 4, 

2015 he provided a steroid injection. 

In a March 10, 2016 order, the Board found the case not in posture for decision, set aside 

the May 27, 2015 OWCP decision, and remanded the case. The Board noted that appellant had 

properly filed a timely request for review of the written record before OWCP’s Branch of 

Hearings and Review and had submitted relevant and pertinent new medical evidence. The 

Board found that, while OWCP’s hearing representative briefly mentioned Dr. Rumana’s reports, 

she had not mentioned Dr. Fuhrmeister’s reports. As the hearing representative had not 

considered the medical reports dated September 4, 2012 to July 28, 2014 from Dr. Fuhrmeister, 

the Board again remanded the case for OWCP to properly consider all of the evidence submitted, 

to be followed by an appropriate de novo decision.7

 

By decision dated June 2, 2016, OWCP again terminated appellant’s entitlement to 

medical benefits and future wage-loss compensation benefits as the weight of the medical 

evidence established that she no longer had employment-related residuals or disability. 

LEGAL PRECEDENT 

 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. 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. The right to medical benefits for an accepted 

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

 7

 Docket No. 15-1403, Order Remanding Case (issued March 10, 2016). 
5

medical treatment, OWCP must establish that appellant no longer has residuals of an 

employment-related condition, which require further medical treatment.8

ANALYSIS 

The Board initially notes that, in its August 4, 2014 decision, it found that OWCP had 

met its burden of proof to terminate appellant’s wage-loss compensation, effective February 27, 

2012, because she had no employment-related disability.9

 Appellant has not requested further 

wage-loss compensation. The Board now finds that OWCP met its burden of proof to terminate 

appellant’s medical benefits, effective November 16, 2014. 

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.10 

In reports dated February 27 and April 19, 2012, Dr. Crosby had clearly explained that, 

based on his review of the medical record and his physical examination findings of no strong 

radicular pain to the right and left upper extremities, with normal strength testing and reflexes, 

and no marked tenderness found on examination of paraspinal musculature, appellant had no 

disability or need for restricted duty as far as the neck or thoracic spine were concerned. He 

advised that, while appellant had sustained cervical and thoracic strains on January 5, 2010, the 

conditions had resolved at the time of his examination on February 27, 2012. Thus, the Board 

concludes that Dr. Crosby’s reports established that appellant no longer had residuals of the 

accepted neck and thoracic strains, caused by the January 5, 2010 employment-related fall at 

work. 

Dr. Rumana submitted reports dated September 4, 2010 to February 24, 2015, but these 

reports merely described appellant’s complaints and physical examination findings. While he 

diagnosed cervical radiculopathy, this condition has not been accepted.11 Dr. Rumana did not 

explain at any time how the January 25, 2010 fall caused appellant’s continued complaints.12

In reports dated December 11, 2012 to May 20, 2015, Dr. Fuhrmeister opined that 

appellant’s neck pain could be related to an employment injury and was likely multifactorial. He 

diagnosed brachial neuritis or radiculopathy, also not accepted under this claim. While the 

opinion of a physician supporting causal relationship need not be one of absolute medical 

certainty, the opinion must not be speculative or equivocal. The opinion should be expressed in 

 8 C.R., Docket No. 15-0501 (issued February 18, 2016); Fred Simpson, 53 ECAB 768 (2002). 

9 Supra note 6. 

10 Supra note 8. 

11 See T.M., Docket No. 08-975 (issued February 6, 2009) (where a claimant claims that a condition not accepted 

or approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the 

condition is causally related to the employment injury through the submission of rationalized medical evidence). 

12 Id.
6

terms of a reasonable degree of medical certainty.13 Dr. Fuhrmeister couched his opinion in 

speculative terms. 

The weight of the 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.14 As Dr. Crosby provided a well-rationalized opinion that 

appellant had no continuing residuals of the accepted neck and thoracic strains, his opinion 

constitutes the weight of the medical evidence regarding whether appellant had a continuing 

need for medical treatment due to the accepted condition.15 Accordingly, OWCP properly 

terminated appellant’s medical benefits based on his opinion.16

CONCLUSION 

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

benefits, effective November 16, 2014 because she no longer had residuals of the accepted 

employment-related conditions. 

 13 See T.H., Docket No. 15-311 (issued June 2, 2015) (physician’s opinion that employee’s injury was most likely 

attributable to work factors was considered speculative and insufficient to establish claim); Ricky E. Storms, 52 

ECAB 349 (2001) (medical opinions which are speculative or equivocal in character have little probative value). 

14 I.R., Docket No. 09-1229 (issued February 24, 2010). 

15 C.R., supra note 8. 

16 See E.J., 59 ECAB 695 (2008). 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 2, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: April 19, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board