United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 16-0724 

Issued: October 7, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 1, 2016 appellant, through counsel, filed a timely appeal from a November 9, 

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 over the merits of this case. 

ISSUES 

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

wage-loss compensation and medical benefits effective July 2, 2014; and (2) whether appellant 

 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

established continuing residuals or associated disability of the accepted conditions after 

July 2, 2014. 

FACTUAL HISTORY 

OWCP accepted that on or before September 12, 2008 appellant, then a 46-year-old letter 

carrier, sustained a low back sprain, right knee and leg sprains, and right Achilles tendinitis due 

to prolonged walking in the performance of duty. Appellant stopped work on 

September 13, 2008. He received wage-loss compensation on the supplemental rolls from 

November 22, 2008 to April 11, 2009. 

In a September 15, 2008 report, Dr. Ghansham Singh, an attending Board-certified 

internist, noted paraspinal tenderness at L4-5 on the left and a mild limp. He held appellant off 

work for two weeks. Dr. Singh prescribed physical therapy. In an October 1 and November 10, 

2008 reports, Dr. Rajpaul Singh, an attending Board-certified neurologist, diagnosed lumbosacral 

sprain and strain, right knee and leg sprain and strains, and right Achilles tendinitis. He 

continued to hold appellant off work as of October 22, 2008. 

In November 11 and December 10, 2008 reports, Dr. Rajesh Patel, an attending physician 

Board-certified in pain management, diagnosed discogenic and sacroiliac lumbar pain with rightsided radiculopathy. OWCP authorized a series of sacroiliac injections. Appellant had the 

sudden onset of adult diabetes mellitus in reaction to the steroid injection, with an emergency 

hospital admission on February 14, 2009. After his blood glucose was under control with 

medication, Dr. Patel continued epidural injections in May 2009. Appellant remained off work. 

In a May 19, 2009 report, Dr. Sanjay Bakshi, an attending physician Board-certified in 

pain management, diagnosed lumbar facet syndrome, lumbar radiculopathy, and possible 

discogenic disease. He recommended lumbar facet blocks. OWCP authorized the injections. 

On July 19, 2009 OWCP obtained a second opinion from Dr. David Rubinfeld, a Boardcertified orthopedic surgeon. Dr. Rubinfeld reviewed the medical record and a statement of 

accepted facts, and provided results on examination. He provided detailed range of motion 

measurements for all planes of motion in the upper and lower extremities and the cervical and 

lumbar spine. Dr. Rubinfeld found no limitation of motion in any joint, but noted voluntarily 

restricted motion in the lumbar spine. He opined that appellant had no objective findings in the 

lumbar spine, and exhibited pain behaviors. Dr. Rubinfeld released appellant to full duty with no 

restrictions. 

In late 2009, appellant relocated from New York to New Jersey. Beginning on 

January 28, 2010, he was followed by Dr. Dean L. Carlson, an attending Board-certified 

orthopedic surgeon. Dr. Carlson provided a history of injury and treatment, and diagnosed right 

lumbosacral radiculopathy and a low back strain. He held appellant off work. 

On September 16, 2010 OWCP obtained a second opinion from Dr. Sean Lager, a Boardcertified orthopedic surgeon. Dr. Lager opined that appellant had a “significant problem,” with a 

large disc herniation causing weakness, paresthesias, and sensory deficits in the right lower 

extremity. He recommended electromyogram (EMG) testing and a neurosurgical consultation. 
3

Dr. Lager found that appellant remained disabled for all work, and had not yet attained 

maximum medical improvement. 

In a November 11, 2010 report, Dr. Carlson observed that on examination, appellant had 

“an exhibition of near total inability to walk,” leaning heavily on walls or furniture. Appellant 

could not stand on his heels or toes, had great difficulty climbing on and off the examination 

table, and needed assistance lifting his right leg onto the table. Dr. Carlson observed a half inch 

difference between right and left calf measurements, smaller on the right. He diagnosed low 

back and lower extremity pain of undetermined etiology. 

A December 14, 2010 lumbar magnetic resonance imaging (MRI) scan showed mild 

facet arthropathy from L3 though S1. Dr. Carlson opined on December 22, 2010 that these 

findings were insufficient to explain the severity of appellant’s clinical presentation, as there was 

“no disc herniation, spinal canal, or foraminal stenosis.” 

In a January 5, 2011 chart note, Dr. Carlson opined that there was no orthopedic cause for 

appellant’s inability to “walk and function.” He recommended a “neurologic check to make sure 

there [was] no MS [multiple sclerosis] or central nerve system etiology.” Dr. Carlson prescribed 

a cane. Appellant remained off work. 

In a June 21, 2011 report, Dr. Stephen Sachs, an attending Board-certified neurologist, 

diagnosed bilateral lumbar radiculopathy, with mild bilateral cubital tunnel syndrome, borderline 

left carpal tunnel syndrome, possible myositis versus connective tissue disorder or metabolic 

factors. He recommended EMG studies. Appellant remained off work through 2013. 

Dr. Carlson noted on June 13, 2013 that appellant had not been able to get authorization 

for EMG and nerve conduction velocity (NCV) testing. He recommended the testing as 

appellant still had an unusual gait and difficulty moving his lower extremities. 

September 5, 2013 EMG and NCV studies showed “no electrodiagnostic abnormalities to 

implicate compression neuropathy or lumbosacral radiculopathy” in the lower extremities. 

Dr. Martin Diamond, a Board-certified physiatrist and the electromyographer, noted that 

appellant had a “significant degree of lumbosacral myofascial pain which may be contributing to 

his symptoms.” 

Dr. Carlson reviewed the electrodiagnostic report on October 23, 2013. He diagnosed 

“[l]umbosacral myofascial pain with functional overlay.” Dr. Carlson explained that there was 

no “medical evidence identified for [appellant’s] inability to flex his right hip. Possibility of a 

secondary gain remains.” In a November 18, 2013 report, Dr. Carlson found that the accepted 

injuries had ceased without residuals. He diagnosed “nonorganic low back pain.” Dr. Carlson 

released appellant to full duty without restrictions. Appellant remained off work. 

By notice dated May 29, 2014, OWCP advised appellant of its proposal to terminate his 

wage-loss and medical benefits, as Dr. Carlson opined that the accepted conditions had ceased 

without residuals. It afforded appellant 30 days to submit additional evidence or argument. 

Appellant did not respond to the notice. 
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By decision dated July 2, 2014, OWCP finalized the May 29, 2014 notice and terminated 

appellant’s wage-loss and medical benefits effective July 2, 2014. 

On July 31, 2014 appellant provided a June 17, 2014 report from Dr. Sachs, noting a 

positive right straight leg raising test, a markedly antalgic gait, and a normal neurologic 

examination. Dr. Sachs diagnosed a lumbosacral sprain and thoracic/lumbosacral radiculopathy. 

He recommended additional testing. 

In a May 5, 2015 letter, counsel requested reconsideration. He submitted new medical 

evidence. Dr. David E. Rojer, an attending Board-certified orthopedic surgeon, diagnosed thigh 

and pelvic pain of unknown etiology on August 19, 2014. He held appellant off work. A 

September 4, 2014 lumbar MRI scan showed a right-sided disc protrusion at L4-5 with mild right 

foraminal narrowing. On September 10, 2014 Dr. Rojer diagnosed as a right-sided herniated 

L4-5 disc, and a labral tear of the right hip. 

Dr. Nathaniel Sutain, an attending Board-certified orthopedic surgeon, began treating 

appellant on August 27, 2014. He diagnosed a herniated L4-5 disc. Dr. Sutain noted appellant’s 

continued pain complaints in reports through December 16, 2014. On January 19, 2015 

Dr. Sutain reviewed appellant’s history. He related appellant’s complaints of right-sided lumbar 

radiculopathy. Dr. Sutain opined that the herniated L4-5 disc demonstrated by September 4, 

2014 MRI scan was causally related to the accepted lumbar condition, and competent to produce 

appellant’s symptoms. He found appellant totally disabled for work. 

Dr. Christopher R. Ropiak, a Board-certified orthopedic surgeon in practice with 

Dr. Sutain, diagnosed right hip pain on December 15, 2014 and held appellant off work. 

Appellant underwent a February 24, 2015 arthrogram of the right hip. 

By decision dated November 9, 2015, OWCP denied modification of the July 2, 2014 

decision, finding that the additional medical evidence did not contain sufficient rationale to 

establish that the accepted conditions disabled appellant for work on and after July 2, 2014. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP has accepted a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.3

 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation 

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

employment.4

 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.5

 

 3 Bernadine P. Taylor, 54 ECAB 342 (2003). 

4 Id.

5 J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 
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The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability.6

 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.7

 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a low back sprain, right knee and leg sprains, 

and right Achilles tendinitis on or before September 12, 2008. Appellant stopped work on 

September 13, 2008 and did not return. 

After his move to New Jersey appellant was followed by Dr. Carlson, an attending 

Board-certified orthopedic surgeon. On January 28, 2010 Dr. Carlson diagnosed lumbosacral 

radiculopathy and a low back strain. 

Dr. Carlson opined on November 18, 2013 that the accepted conditions had resolved 

completely and released appellant to full duty. OWCP then terminated appellant’s wage-loss and 

medical compensation benefits effective July 2, 2014 finding Dr. Carlson the weight of the 

medical evidence. 

The Board finds that Dr. Carlson based his opinion on his knowledge, extensive imaging 

and electrodiagnostic testing, and detailed clinical examinations and found no objective 

explanation for appellant’s symptoms. The Board, therefore, finds that OWCP’s July 2, 2014 

decision terminating appellant’s wage-loss compensation and medical benefits was proper under 

the law and facts of the case as the weight of the medical evidence determined that the accepted 

conditions had ceased without residuals. 

LEGAL PRECEDENT -- ISSUE 2 

After termination or modification of benefits clearly warranted on the basis of the 

evidence, the burden for reinstating compensation benefits, shifts to the claimant. In order to 

prevail, the claimant must establish by the weight of reliable, probative and substantial evidence 

that he or she had an employment-related disability that continued after termination of 

compensation benefits.8

ANALYSIS -- ISSUE 2 

As stated above, OWCP properly terminated appellant’s wage-loss and compensation 

benefits effective July 2, 2014, based on the opinion of Dr. Carlson. The burden then shifted to 

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

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

8 See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101 (1992). 
6

appellant to demonstrate that the accepted injuries caused continuing residuals or disability for 

work and after July 2, 2014.9

Following the July 2, 2014 decision terminating appellant’s wage-loss compensation and 

medical benefits, appellant submitted additional medical evidence. He was followed by three 

associated Board-certified orthopedic surgeons, Drs. Rojer, Ropiak, and Sutain beginning on 

August 19, 2014. The physicians held appellant off work, and obtained a September 4, 2014 

lumbar MRI scan showing a right-sided L4-5 disc protrusion with mild right foraminal 

narrowing. 

Dr. Rojer diagnosed a labral tear of the right hip, and Dr. Ropiak diagnosed right hip 

pain. However, OWCP had not accepted an occupational right hip condition. Dr. Sutain opined 

on January 19, 2015 that the herniated L4-5 disc was causally related to the accepted injuries, 

and competent to cause appellant’s symptoms. However, the physicians did not provide their 

medical reasoning as to why the lumbar disc herniation or labral tear were related to the accepted 

low back sprain or right leg conditions. In the absence of such rationale, the opinions of 

Drs. Rojer, Ropiak, and Sutain are of diminished probative value and is insufficient to meet 

appellant’s burden of proof.10 

OWCP properly found that Dr. Carlson’s opinion continued to represent the weight of the 

medical evidence. Dr. Carlson explained that based on a thorough examination and complete 

history, the accepted lumbar and right lower extremity conditions had ceased. The evidence 

appellant submitted following the termination is insufficient to outweigh Dr. Carlson’s opinion 

as it attributes appellant’s symptoms to an L4-5 disc herniation and labral tear in the right hip, 

conditions not accepted by OWCP.11 The Board therefore finds that OWCP’s November 9, 2015 

decision finding that appellant did not establish continuing residuals of the accepted injuries on 

and after July 2, 2014 is appropriate under the law and facts of the case. 

On appeal, counsel asserts that Dr. Rubinfeld’s report cannot carry the weight of the 

medical evidence as it was created five years before the July 2, 2014 termination of benefits. 

The Board notes that OWCP did not rely on Dr. Rubinfeld’s report in terminating appellant’s 

compensation benefits, but on the reports of appellant’s attending physicians, particularly 

Dr. Carlson. Counsel also contends there is a conflict between Dr. Rubinfeld, for the 

government, and Dr. Sutain, for appellant, regarding whether appellant’s L4-5 radiculopathy was 

causally related to the accepted lumbar sprain. As stated above, OWCP did not rely on 

Dr. Rubinfeld’s report in terminating appellant’s compensation. 

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. 

 9 Id.

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

11 See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or 

approved by OWCP is due to an employment injury, he bears the burden of proof to establish that the condition is 

causally related to the employment injury). 
7

CONCLUSION 

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

compensation and medical benefits effective July 2, 2014. The Board further finds that appellant 

has not established continuing residuals or associated disability of the accepted conditions after 

July 2, 2014. 

ORDER 

IT IS HEREBY ORDERED THAT the November 9, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 7, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board