United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.C., Appellant 

and 

DEPARTMENT OF THE ARMY, U.S. ARMY 

CORPS OF ENGINEERS, Vicksburg, MS, 

Employer 

__________________________________________ 

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Docket No. 16-1165 

Issued: November 3, 2016 

Appearances: Case Submitted on the Record

Clinton Mead, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 13, 2016 appellant, through counsel, filed a timely appeal of a March 2, 2016 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective February 29, 2016. 

On appeal counsel contends that the weight of the medical opinion evidence clearly 

establishes that appellant continues to have residuals and disability due his accepted work injury. 

FACTUAL HISTORY 

On August 5, 2014 appellant, then a 45-year-old seasonal deck hand,3

 filed a traumatic 

injury claim (Form CA-1) alleging that on August 1, 2014 he sustained cervical and lumbar 

strains when his boat capsized as he was assisting with tying off buoys on the Mississippi River. 

He explained that he was carried off by the river’s current while he was under the barge, and his 

body was struck by the barge while he struggled to free himself. Appellant stopped work on 

August 1, 2014. OWCP accepted the claim for lumbar and neck strains and paid appellant wageloss compensation on the supplemental rolls for disability for the period September 29, 2014 to 

July 25, 2015. 

Following the injury, appellant was under the care of Dr. Dan W. Jackson, a treating 

osteopathic physician, Board-certified in family medicine, and Dr. Michael L. Baker, a treating 

osteopathic physician specializing in general practice. Diagnoses reportedly due to the August 1, 

2014 employment injury included cervical strain, cervicalgia, bilateral shoulder sprains, multiple 

contusions including lumbosacral, and multiple psychological problems. Pain and significant 

limb problems and neck and cervical radicular, low back, bilateral shoulder, and hip pain were 

also reported in treatment notes during the period August 11, 2014 to January 6, 2015. In a 

September 23, 2014 treatment note, Dr. Jackson reviewed a magnetic resonance imaging scan 

finding it was basically unremarkable. On January 6, 2015 he reported that appellant’s pain was 

subjective, but that appellant had decreased range of motion, and pain on passive range of 

motion. 

On April 23, 2015 appellant came under the care of Dr. Michael Winkelmann, a Boardcertified physiatrist. Dr. Winkelmann provided a history of appellant’s August 1, 2014 work 

injury, his medical history, and examination findings. The physical examination findings 

included a left knee knot, decreased lumbar flexibility, and pain. Dr. Winkelmann recommended 

a left knee MRI scan as he believed there might be meniscal pathology due to the August 1, 2014 

work injury. He reported that appellant’s pain might be the result of “analgesic-induced 

allodynia.” In an attached work capacity evaluation form (Form OWCP-5c), he concluded that 

appellant was disabled from work until a left knee MRI scan and physical therapy were 

performed. 

In May 15, 2015 treatment notes, Dr. Winkelmann reported left knee pain and clicking, 

which he concluded might be a meniscal tear. He reported that appellant’s cervical and shoulder 

evaluation was unremarkable. 

 3

 Appellant was employed as a four-month seasonal employee whose last day of work would have been 

December 17, 2014. 
3

Dr. Winkelmann, in a June 10, 2015 report, noted that appellant continued to have 

shoulder, cervical, lower back, knee and hip pain. He noted that at the time of the August 1, 

2014 work injury appellant reported cervical and shoulder pain. Based on his examination 

findings, Dr. Winkelmann reported right lower extremity, hip, and knee pain with right knee 

meniscal clicking. He explained that he asked appellant about the right knee click and appellant 

replied that he felt discomfort when his knee was struck by the barge, but his cervical and 

shoulder pain was his primary concern. According to Dr. Winkelmann, appellant’s cervical and 

lumbar sprains had improved, but his hip and knee discomfort required further evaluation. In 

attached OWCP-5c forms dated June 1, July 1 and 8, 2015, Dr. Winkelmann diagnosed neck and 

lumbar strains and that appellant was currently disabled from work. 

In a July 8, 2015 report, Dr. Winkelmann noted that he had been asked by OWCP to 

review the etiology of appellant’s left knee condition. He opined that based on the history 

appellant provided of hitting his left knee against the barge and his inability to walk once he was 

assisted onto the boat’s deck, that appellant sustained a knee injury. At the time appellant’s 

focus was on his cervical and lumbar pain because his knee discomfort was not as significant. 

Dr. Winkelmann noted that it was not unusual that, when pain was experienced in multiple areas, 

one area may not be as apparent. Physical examination findings clearly showed a left knee 

medial aspect knot. Dr. Winkelmann found that the left knee injury contributed to appellant’s 

lumbar issues and inability to walk without a limp. Thus, he opined that appellant’s lumbar 

condition has been prolonged and exacerbated by the left knee injury and that the cervical 

condition had improved. Dr. Winkelmann concluded that the evidence was clear that the 

August 1, 2014 employment injury also caused a left knee injury. He opined that appellant was 

capable of performing light-duty work with lifting restrictions of no more than 10 to 15 pounds. 

On July 22, 2015 OWCP referred appellant for a second opinion evaluation with 

Dr. Daniel P. Dare, a Board-certified orthopedic surgeon, to determine whether appellant 

continued to have residuals and disability due to his accepted August 1, 2014 work injury. 

In an August 24, 2015 report, Dr. Dare, based upon a review of the medical evidence, 

statement of accepted facts (SOAF), and appellant’s physical examination, diagnosed cervical 

and lumbar sprains, and noted right knee pain. Appellant related that his back, neck, and knee, 

pain had all improved considerably. Dr. Dare found appellant’s complaints to be nonspecific and 

vague. He reported that appellant had been released to return to light-duty work on June 6, 2015, 

but that he had not returned to work. Appellant’s cervical, chest and lumbar x-rays were 

interpreted as normal. Dr. Dare noted that appellant did not claim of any significant disability. 

A physical examination revealed no cervical or lumbar tenderness, normal cervical and lumbar 

range of motion, normal upper extremity neurologic examination, some extremity pain 

complaints, no bilateral knee effusion or tenderness, no knee instability, and a mild right knee 

click. Dr. Dare opined that the accepted lumbar and cervical sprains had resolved without 

residuals. 

In a September 16, 2015 progress notes, Dr. Winkelmann reported that appellant had 

cervical, shoulder, upper trapezius and knee pain. He reiterated his opinion that appellant’s knee 

pain was caused by the August 1, 2014 work injury. 
4

On September 26, 2015 the employing establishment offered appellant a light-duty 

sedentary job in a watchman’s shack located on mooring barge. Appellant, however, declined 

the position due to his anxiety with being on boats/barges. 

On January 4, 2016 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits. 

In response to OWCP’s proposal appellant submitted reports dated December 9, 2015 

and January 13, 2016 by Dr. Winkelmann. In his December 9, 2015 report, Dr. Winkelmann 

reported that appellant was doing well except for significant left knee pain and difficulties with 

the knee locking up. Dr. Winkelmann recommended an MRI scan. In a January 13, 2016 report, 

he provided examination findings. 

By decision dated March 2, 2016, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits effective February 29, 2016. It found the opinion of 

Dr. Dare, an OWCP referral physician, that appellant no longer had any residuals or disability 

due to the accepted August 1, 2014 injury constituted the weight of the medical opinion 

evidence. 

LEGAL PRECEDENT 

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

modification or termination of an employee’s benefits.4 After it has determined that an 

employee has disability causally related to his federal employment, OWCP may not terminate 

compensation without establishing that the disability has ceased or that it is no longer related to 

the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.6

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

entitlement for disability.7

 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.8

ANALYSIS 

OWCP accepted appellant’s claim for lumbar and neck strains. It terminated appellant’s 

wage-loss compensation and medical benefits effective February 29, 2016 based upon Dr. Dare’s 

opinion that he no longer had any residuals or disability due to his accepted employment 

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

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

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

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

8 Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003). 
5

conditions. The Board finds that OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective February 29, 2016. 

In an August 24, 2015 report, Dr. Dare noted diagnoses of cervical and lumbar sprains, 

but found no cervical or lumbar tenderness, normal cervical and lumbar range of motion, normal 

upper extremity neurologic examination, no bilateral knee effusion or tenderness, and no knee 

instability. He reported that appellant had no objective symptoms of the cervical or lumbar 

sprains. Based on his review of the medical evidence, SOAF, and physical examination, 

Dr. Dare concluded that appellant could perform his regular duties with no restrictions and no 

further medical treatment was required for the accepted employment injuries. 

The Board finds that Dr. Dare’s report represents the weight of the medical evidence and 

that OWCP properly relied on his report to terminate appellant’s wage-loss compensation and 

medical benefits for the accepted conditions on February 29, 2016. Dr. Dare’s opinion is based 

on a proper factual and medical history as he reviewed the SOAF and appellant’s prior medical 

treatment. He also related his comprehensive examination findings in support of his opinion that 

appellant no longer had any residuals or disability causally related to his accepted lumbar and 

neck strains. OWCP therefore met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits based upon the report from Dr. Dare.9

The record also contains reports from Dr. Winkelmann covering the period April 23, 

2015 to January 13, 2016. On April 23, 2015 Dr. Winkelmann reported that appellant struck his 

left knee under the barge and he diagnosed a possible meniscal condition. He also opined that 

appellant’s pain could be attributed to analgesic-induced allodynia. In subsequent reports, 

Dr. Winkelmann reported appellant’s complaints of pain involving his bilateral shoulders, 

cervical and lumbar aching pain. He later indicated that appellant’s cervical and lumbar sprains 

showed improvement. Dr. Winkelmann opined that the evidence was clear that appellant also 

sustained a left knee injury as a result of the August 1, 2014 work injury. The Board notes that 

OWCP has not accepted a left knee injury as employment related. For conditions not accepted 

by OWCP as being employment related, it is the employee’s burden to provide rationalized 

medical opinion evidence sufficient to establish causal relationship and is not OWCP’s burden to 

disprove such a relationship.10 At the time of the August 1, 2014 work injury appellant did not 

allege a left knee injury or state that his knee had been struck by the barge. The Board further 

notes that Dr. Winkelmann was not consistent in his reports in relating a left knee injury. In his 

June 10, 2015 report, Dr. Winkelmann noted right knee clicking and asked appellant about his 

right knee. At that time appellant related that he had struck his right knee on the barge at the 

time of the August 1, 2014 work injury. Similarly Dr. Dare noted appellant’s complaints 

regarding his right knee, not left knee. 

The Board finds that Dr. Winkelmann failed to provide sufficient medical rationale, 

based upon a consistent history of injury, explaining the causal relationship between the 

 9 See F.B., Docket No. 13-2066 (issued March 11, 2014). 

10 G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 

51 ECAB 638 (2000).
6

diagnosed left knee condition and the accepted August 1, 2014 employment injury, and thus, his 

reports are insufficient to establish causal relationship.11 

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits as appellant no longer had residuals of the accepted cervical 

and lumbar conditions. 

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 wage-loss 

compensation and medical benefits, effective February 29, 2016. 

ORDER 

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

Compensation Programs dated March 2, 2016 is affirmed. 

Issued: November 3, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 Deborah L. Beatty, 54 ECAB 340 (2003).