United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

U.S. POSTAL SERVICE, TWINLAKE POST 

OFFICE, Federal Way, WA, Employer 

__________________________________________ 

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Docket No. 16-0480 

Issued: August 29, 2016 

Appearances: Case Submitted on the Record

Howard L. Graham, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 15, 2016 appellant, through counsel, filed a timely appeal of a December 15, 

2015 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 the case. 

ISSUE 

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

benefits and wage-loss compensation for her accepted injury, effective February 20, 2015. 

 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

On appeal counsel contends that the statement of accepted facts (SOAF) was deficient, 

that OWCP usurped the function of its medical adviser, and that the second opinion physician 

submitted an unrationalized report. He also contends that OWCP did not address any of his 

arguments in its very brief decision. 

FACTUAL HISTORY 

On March 21, 2012 appellant, then a 46-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on March 14, 2012, after collecting and preparing incoming mail, she 

felt pain in her neck and upper back, accompanied by numbness in her left arm and hand. On 

June 7, 2012 OWCP accepted appellant’s claim for temporary aggravation of cervical 

radiculopathy with disc protrusion. Appellant received intermittent wage-loss compensation 

benefits on the supplemental rolls from June 2, 2012 through January 23, 2015. 

In a November 5, 2014 report, Dr. Christopher R. Howe, appellant’s treating Boardcertified orthopedic surgeon, noted that appellant had an employment-related injury dating back 

to March 2012. He listed an impression of cervical spondylosis with possible radiculopathy and 

possible proximal muscle weakness from myasthenia gravis. Dr. Howe noted that appellant 

remained symptomatic. He related that he had placed her on a very low dose of Prednisone for 

one week and referred her for a repeat steroid injection as these treatments had been helpful. 

On November 19, 2014 OWCP referred appellant to Dr. Louis Kretschmer, a Boardcertified orthopedic surgeon, for a second opinion, to determine appellant’s current medical 

status. In a December 10, 2014 report, Dr. Kretschmer reviewed appellant’s medical history, and 

related findings from her magnetic resonance imaging (MRI) and computerized tomography 

(CT) scans. He listed appellant’s diagnoses as: (1) administratively accepted temporary 

aggravation preexisting cervical spine degenerative disease, multiple levels; (2) myasthenia 

gravis; (3) diabetes; and (4) osteoarthritis of the knees, an unrelated condition. Dr. Kretschmer 

opined that none of the diagnosed conditions were medically connected to the March 14, 2012 

employment injury, but that it appeared that aggravation of the degenerative disease of the 

cervical spine was administratively accepted. He explained that appellant’s continuing 

conditions of global axial neck pain and marked weakness of both upper extremities were due to 

preexisting degenerative disease of the cervical spine and myasthenia gravis. Dr. Kretschmer 

noted they were not related to her employment injury of March 14, 2012, and thus the temporary 

aggravation would have ceased. He related that appellant’s cervical condition was fixed and 

stable. Dr. Kretschmer also noted that appellant had axial pain, but no radicular component. 

Therefore, he was not aware of any injections or operative intervention that would meet 

appellant’s expectations for relief of her axial neck pain. Dr. Kretschmer concluded that no work 

restrictions were necessary for appellant’s accepted condition, and that no further treatment was 

recommended for the accepted employment condition, but that continued treatment for unrelated 

myasthenia gravis would be appropriate. 

In a December 22, 2014 report, Dr. Howe listed his clinical impression as cervical 

spondylosis with primary axial neck pain. He noted that a new MRI scan of the cervical spine 

acquired on December 19, 2014 revealed facet arthropathy more on the right than the left at C4-

C5, with moderate central stenosis at C5-C6 and mild-to-moderate bilateral forminal narrowing. 

Dr. Howe noted that he was concerned that surgery may not provide the relief that she was 
3

seeking. He concluded that, if appellant did not proceed with surgery, she was rapidly 

approaching maximum medical improvement (MMI). 

On January 13, 2015 OWCP proposed terminating appellant’s wage-loss compensation 

and medical benefits as the weight of the medical evidence established that appellant no longer 

had any residuals or continuing disability from work stemming from her accepted injury. 

In a January 26, 2015 report, Dr. Howe noted that appellant had been having significant 

neck pain since March 2012. He noted that appellant’s most recent MRI scan of December 19, 

2014 was quite similar to the one obtained on February 15, 2012, prior to her work injury. 

Dr. Howe listed a clinical impression of cervical spondylosis with minimal radicular symptoms. 

He believed that appellant could return to work, but with restrictions. Dr. Howe noted that it 

would be difficult for appellant to perform overhead activities or repetitive lifting of greater than 

15 pounds and noted that appellant’s limitations may be due to her preexisting condition as well 

as her myasthenia gravis. He found that appellant was at MMI, and noted that he did not 

recommend surgery. 

By letter dated February 9, 2015, appellant, through counsel, noted her objection to the 

proposed termination. Counsel initially contended that Dr. Kretschmer was an inappropriate 

physician as he was an orthopedist and that because cervical radiculopathy is a nerve condition 

and not a bone condition, appellant should have her claim reviewed by a neurologist or certified 

pain specialist. He then argued that the most recent MRI scan reviewed by Dr. Kretschmer 

showed continued annular bulges at C5-6 and C6-7, which was the same condition that was the 

basis for the approval of the claim in 2012. Counsel also contended that the second opinion 

physician provided no rationale to explain why the same condition that was the basis of the claim 

still existed, but was not work related. He noted that Dr. Kretschmer did not have the 

December 22, 2014 report which summarized the December 19, 2014 MRI scan of appellant, 

and explained that the December 19, 2014 MRI scan continued to reveal facet arthropathy worse 

on the right than the left at C4-5, and moderate central stenosis at C5-C6. Counsel also 

contended that OWCP asked a leading question when they asked Dr. Kretschmer whether the 

temporary aggravation of the cervical condition ceased. He questioned the weight given 

Dr. Kretschmer’s report, arguing that this report lacked rationale and contained contradictions. 

Finally, counsel contended that the SOAF failed to list appellant’s work limitations. He argued 

that, if OWCP determined that Dr. Kretschmer’s report was rationalized, then the case should be 

referred for an impartial medical examination to resolve the conflict between Dr. Howe and 

Dr. Kretschmer with regard to whether appellant had continuing residuals due to the accepted 

condition. 

By decision dated February 18, 2015, OWCP terminated appellant’s medical and wageloss compensation benefits effective February 20, 2015 as the weight of the medical evidence 

established that appellant no longer had any continuing disability or residuals related to the 

accepted employment-related condition. 

On March 11, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. At the hearing held on October 5, 2015 she testified and described the 

circumstances of her March 14, 2012 employment injury. Appellant noted that she worked part 

time following the injury, but that the last day she worked was October 17, 2014. 
4

Counsel submitted a letter setting forth his previous arguments presented, both at the 

hearing and in his prior letter, including his arguments that the SOAF did not address appellant’s 

physical limitations, that the second opinion physician did not review the subsequent medical 

evidence, that OWCP usurped the role of the medical adviser when it rejected Dr. Howe’s 

reports, and that the second opinion was not rationalized. 

By decision dated December 15, 2015, OWCP’s hearing representative affirmed the 

February 18, 2015 decision. He found that appellant’s treating physician, Dr. Howe, had 

reported on January 28, 2015 that appellant’s December 19, 2014 MRI scan showed similar 

findings to the February 15, 2012 MRI scan, which was obtained prior to appellant’s accepted 

employment injury. The hearing representative concluded that Dr. Kretschmer’s medical 

opinion was well rationalized and established that appellant no longer had residuals of the 

accepted condition. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying 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 The 

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

the 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.5

ANALYSIS 

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

compensation and medical benefits as the report of the second opinion physician, 

Dr. Kretschmer, was sufficient to meet OWCP’s burden of proof. 

OWCP based its decision to terminate appellant’s benefits on a December 10, 2014 report 

by Dr. Kretschmer, the second opinion physician, who conducted a physical examination and 

reviewed appellant’s medical history. Dr. Kretschmer concluded that any temporary aggravation 

of appellant’s cervical condition had ceased. He noted that appellant’s cervical condition was 

fixed and stable, and that no further treatment was recommended for this condition. 

The Board finds that Dr. Kretschmer’s second opinion report does not conflict with the 

opinion of appellant’s treating physician, Dr. Howe. Dr. Howe noted that appellant had been 

having significant neck pain since March 2012, and continued to note, in his January 26, 2015 

report, a clinical impression of cervical spondylosis with minimal radicular symptoms. In his 

 3 Barry Neutuch, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995); see also M.B., Docket No. 12-

728 (issued September 26, 2012). 

4 Mary A. Lowe, 52 ECAB 223, 224 (2001). 

5 Id.; Leonard M. Burger, 51 ECAB 369 (2000). 
5

January 26, 2015 report, however, he also explained that a comparison of appellant’s 

February 15, 2012 MRI scan, which was taken prior to her employment injury, showed 

substantially similar findings to her most recent MRI scan of December 19, 2014. Dr. Howe also 

noted that appellant’s physical limitations may be due to her preexisting condition, as well as her 

myasthenia gravis. 

Dr. Kretschmer opined that the accepted temporary aggravation of appellant’s cervical 

condition had ceased. He noted that her conditions of continuing global axial neck pain and 

marked weakness of both upper extremities were due to the preexisting degenerative disc disease 

of the cervical spine and myasthenia gravis. Dr. Kretschmer noted that they were not related to 

her employment injury of March 14, 2012, so the accepted condition temporary aggravation 

would have ceased. In assessing medical evidence, the weight of medical evidence is determined 

by its reliability, its probative value, and its convincing quality. The factors that comprise the 

evaluation of medical opinion evidence include the opportunity for and thoroughness of physical 

examination, the accuracy or completeness of the physician’s knowledge of the facts and medical 

history, the care of analysis manifested, and the medical rationale expressed in support of the 

physician’s opinion.6

 As Dr. Kretschmer explained his review of the medical evidence and the 

findings of his physical examination, his opinion provides sufficient detail to constitute a 

rationalized medical opinion as to why the temporary aggravation of appellant’s cervical 

radiculopathy with disc protrusion had resolved. Therefore, his opinion is sufficient to meet 

OWCP’s burden of proof to terminate appellant’s benefits. 

On appeal counsel contends that the SOAF was deficient in that it did not contain 

appellant’s physical limitations. His argument is without merit. The SOAF is a concise 

summary of the relevant facts that will allow a physician to resolve a particular medical issue.7 

The essential elements of a SOAF include the date of injury, claimant’s date of birth, job held on 

date of injury, name of the employing establishment, employment history, mechanism of injury, 

and condition claimed or accepted.8 However, not all information contained in a case files bears 

on the issues to be resolved in connection with the SOAF. Some information is irrelevant, while 

other material is inappropriate, prejudicial, or better discussed elsewhere. Evidence to be 

excluded from the SOAF includes medical opinions, unless used in detailing the medical history 

of a claim. The SOAF should also not be used to outline factual issues to be resolved, or to 

discuss legal issues.9

 Accordingly, appellant’s physical limitations, as set forth by the medical 

evidence, were properly excluded from the SOAF. 

Counsel also challenges the weight given to the opinion of the second opinion physician, 

Dr. Kretschmer. He contends that OWCP asked a leading question when it asked 

Dr. Kretschmer to determine whether the temporary aggravation of the cervical condition had 

 6 Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M. Delaney, 53 ECAB 384 (2002); see also G.I., Docket No. 

14-1857 (issued September 9, 2015). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.1 

(September 2009). 

8 Id. at Chapter 2.809.5. 

9 Id. at Chapter 2.809.7. 
6

ceased. This question does not suggest or imply an answer and, in fact, would provide greater 

support for appellant’s position if Dr. Kretschmer determined that appellant continued to suffer 

from an aggravation of her preexisting condition.10 

Counsel contended that Dr. Kretschmer was an orthopedist and not a certified pain 

specialist or a neurologist, and thus was an inappropriate physician to conduct the second 

opinion. The Board notes that the medical evidence submitted by appellant to support her claim 

was presented by Dr. Howe, who is also a Board-certified orthopedic surgeon, and that referral to 

Dr. Kretschmer was appropriate. 

Counsel contended that Dr. Kretschmer did not review medical evidence submitted after 

his report, including the January 26, 2015 report by Dr. Howe which reviewed a 

December 19, 2014 MRI scan. He also contends that the December 19, 2014 MRI scan showed 

the same condition for which the claim was accepted. Counsel’s arguments are without merit. 

Appellant’s claim was accepted for a temporary aggravation of the preexisting cervical 

radiculopathy and disc protrusion. Dr. Howe reviewed the December 19, 2014 MRI scan in his 

January 26, 2015 report. However, he noted that this MRI scan was quite similar to the findings 

seen on the preinjury MRI scan of February 15, 2012. Therefore, the evidence indicates that the 

MRI scan showed the preexisting condition and not any temporary aggravation. 

Counsel also contends that OWCP usurped the role of the medical adviser when it 

rejected Dr. Howe’s reports. However, OWCP has a duty to evaluate the medical evidence to 

determine whether appellant continued to experience disability or residuals from her 

employment-related condition, so this argument is also without merit.11

The evidence of record substantiates that OWCP met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits. 

CONCLUSION 

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

benefits and wage-loss compensation for her accepted injury effective February 20, 2015. 

 10 See T.B., Docket No. 15-0001 (issued July 1, 2015). 

11 See J.R., Docket No. 13-2028 (issued September 24, 2014). 
7

ORDER 

IT IS HEREBY ORDERED THAT the December 15, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 29, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board