United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer 

__________________________________________ 

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Docket No. 17-0915 

Issued: August 29, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 9, 20171 appellant filed a timely appeal from a September 16, 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, 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 benefits effective, May 18, 2016; and (2) whether appellant met his 

burden of proof to establish continuing employment-related disability after May 18, 2016. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from September 16, 2016, the date of OWCP’s last decision was 

March 15, 2017. Since using March 20, 2017, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the 

U.S. Postal Service postmark is March 9, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

On appeal appellant contends that, based on his medical conditions, he cannot return to 

full duty as a rural carrier which requires him to lift up to 70 pounds. 

FACTUAL HISTORY 

On January 20, 2009 appellant, then a 42-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that he had spine and myofascial pain which his physician 

attributed to his September 22, 2003 motor vehicle accident and subsequent work duties.2

 He 

became aware of his condition on September 22, 2003 and related it to factors of his federal 

employment on September 24, 2009. 

Appellant had filed a prior claim, File No. xxxxxx705, which OWCP accepted for a 

cervical strain and concussion due to a September 22, 2003 motor vehicle accident. He stopped 

work immediately following this employment-related incident and returned to work four hours a 

day with no limitations on December 29, 2003. 

In an April 5, 2010 decision, OWCP denied appellant’s occupational disease claim under 

File No. xxxxxx689. On April 16, 2010 appellant requested an oral hearing before an OWCP 

hearing representative. In a June 11, 2010 decision, an OWCP hearing representative set aside 

the April 5, 2010 decision and remanded the case to OWCP for further development of the 

medical evidence. OWCP’s hearing representative combined the two claims with File No. 

xxxxxx689 serving as the master file. Following further development, on August 19, 2010 

OWCP accepted the claim for aggravation of cervical and lumbar degenerative disc disease. 

On September 27, 2010 appellant filed a claim for compensation (Form CA-7) for the 

period August 28 to September 23, 2010. On November 9, 2010 OWCP denied the claim as the 

medical evidence of record at that time did not establish total disability during the claimed period 

due to his accepted work injuries. On December 9, 2010 appellant requested reconsideration. In 

a January 20, 2011 decision, OWCP vacated the November 9, 2010 decision and approved 

appellant’s claim for compensation. It paid wage-loss compensation benefits on the 

supplemental rolls until it placed appellant on the periodic compensation rolls beginning 

July 3, 2011. 

In an October 14, 2015 medical report, Dr. T. Lynette Green-Mack, an attending Boardcertified physiatrist, examined appellant and diagnosed cervical disc derangement without 

myelopathy, cervicogenic headaches, sacroiliitis, low back pain, sciatica of the left leg, and 

postconcussion headaches/migraines. She opined that his conditions were caused by his 

September 22, 2003 employment injuries. Dr. Green-Mack placed appellant on permanent 

restrictions as provided by “Dr. Lee” in 2014 and reduced his work hours to three to four hours a 

day. She noted that he was on chronic opioid therapy which could affect his ability to operate a 

work-related vehicle in various climates. Dr. Green-Mack further noted that appellant’s job 

required repetitive lifting and carrying which exacerbated his condition and caused him to stop 

work as of 2010. 

 2

 OWCP assigned File No. xxxxxx689. 
3

On October 7, 2015 OWCP referred appellant to Dr. Larry R. Lett, a Board-certified 

neurologist, for a second opinion to determine whether he continued to have residuals or 

disability due to the accepted employment-related conditions.3 In a November 6, 2015 report, 

Dr. Lett examined appellant and diagnosed cervicalgia and lumbago. He noted that appellant 

had subjective complaints of pain that were not objectively validated. Dr. Lett advised that he 

was physically capable of performing his date-of-injury position without limitations. 

On February 4, 2016 OWCP determined that there was a conflict in the medical opinion 

between Dr. Green-Mack and Dr. Lett as to whether appellant had any continuing residuals or 

disability due to the accepted employment injuries. 

On February 11, 2016 OWCP referred appellant, together with a statement of accepted 

facts (SOAF),4

 the medical record, and a list of questions, to Dr. Neil H. Levine, a Boardcertified orthopedic surgeon, for an impartial medical examination. 

In a March 24, 2016 report, Dr. Levine noted appellant’s history, reviewed the SOAF, 

and reviewed the medical record. On examination, appellant complained of neck, mid-back, and 

low back pain, and migraine headaches. His affect was normal and he was able to sit up 

continuously for 45 minutes during the interview part of the evaluation. There was slight 

straightening of the cervical lordosis, but the lumbar lordosis was well maintained. Appellant 

walked with a slightly antalgic gait favoring the left leg. He was able to toe walk, but again 

favored the left leg. There was no gross deformity or obvious abnormality. Cervical spine range 

of motion was limited to 5 degrees of flexion, 26 degrees of extension, 40 degrees of external 

rotation to the left and right side, 30 degrees of lateral bending to the left, and 25 degrees on the 

right. Each shoulder had 145 degrees of active abduction and flexion, 40 degrees of extension, 

and 45 degrees of external rotation. Adduction, internal rotation, and excursion on the right were 

to the T11 which was 1 centimeter (cm) less than on the left. Lumbar spine motion was limited 

in all planes. Lateral bending to the right elicited pain in the midline and left lower back at 

L5-S1. Pain was reported with lateral bending to the left in the midline and left lower back. 

Extension was 18 degrees with pain in the midline and left lower back at L5-S1. With forward 

flexion, the fingertips reached to only within 39 cm from the floor and he had pain in the midline 

from L3 to S1 and in the left paraspinal area. There was tenderness to palpation in the midline of 

the cervical spine from C4 through T3. He also had tenderness to palpation in the left 

paraspinous muscles in the cervical spine from C3 to T3 and in the left upper trapezius muscle. 

There was no palpable muscle spasm in the cervical, thoracic, or lumbar spine. There was 

tenderness to palpation in the midline from L2 to S2 and in the area of the left paraspinous 

muscles from L2 to L5, left sacroiliac joint, and left piriformis muscle. A cervical compression 

was positive with appellant reporting pain radiating to the left shoulder. However, a Spurling’s 

maneuver to the left and right side was negative. Shoulder examination revealed a negative full 

 3

 On October 16, 2015 OWCP advised appellant that he was being referred for a second opinion because the case 

record did not contain a 2014 report from Dr. Lee and it appeared that Dr. Green-Mack was referring to a 2011 

report from a prior OWCP referral physician. The record contains an April 29, 2011 report from Dr. Albert C. Lee, 

a neurosurgeon and an OWCP referral physician, who opined that appellant continued to have symptoms referable 

to cervical strain, concussion, and cervical and lumbar degenerative disc disease and was not medically capable of 

returning to his rural letter carrier position as he was restricted lifting more than 25 pounds on a long-term basis. 

4

 The SOAF noted the accepted injuries, appellant’s date-of-injury duties, and his medical treatment. 
4

can and empty can test bilaterally and a negative impingement sign bilaterally. Adson’s test was 

negative. During quadrant loading in extension to the left appellant reported pain just to the left 

of the midline at L3-4. Patrick’s maneuver on the right produced pain in the midline while 

during the same test on the left elicited pain in the midline and left lower back. 

On neurological examination, there was decreased sensation in the left hand along the 

median nerve distribution. There were no motor deficits in either arm. Deep tendon reflexes 

biceps, triceps, and brachioradialis were 1+ and symmetrical. There was spotty decreased left 

leg sensation not following any specific dermatomal pattern. There were no motor deficits and 

all muscle groups in the legs were 5/5 except for the left quadriceps and hamstring muscles 

which were 5-/5 with giving away. Sitting straight leg raising examination on the right was 

negative and on the left appellant reported pain in the left lower back which was negative for 

sciatic nerve irritation/lumbar radiculopathy. During supine straight leg raising he again reported 

pain in the left lower back. Dr. Levine reported that a nonphysiologic examination revealed no 

giving away with flexion and extension of the left knee against resistance which was a positive 

Waddell sign. Spotty decreased sensation in the left leg and low back pain on axial rotation were 

also positive Waddell signs. 

Dr. Levine diagnosed cervical spondylosis with a right paracentral disc herniation at C4-5 

resulting in mild central canal and moderate right foraminal stenosis, and a small central disc 

herniation at C5-6 with minimal central canal and foraminal stenosis. He also diagnosed lumbar 

spondylosis with broad-based disc bulge and facet arthropathy at L4-5 and L5-S1 resulting in 

mild bilateral neuroforaminal narrowing and mild bilateral carpal tunnel syndrome by an 

electromyogram (EMG) study without clinical findings. Dr. Levine opined that the 

September 22, 2003 work injury did not result in any permanent structural injury. Appellant did 

not exhibit specific objective findings consistent with his subjective complaints of pain. 

Dr. Levine opined that he could perform his pre-injury employment as a permanent route rural 

mail carrier without restrictions. He recommended nonsteroidal anti-inflammatory drugs to treat 

degenerative changes in the cervical and lumbar spines. Dr. Levine maintained that surgery or 

injections were not indicated based on his objective findings. 

On April 14, 2016 OWCP proposed to terminate wage-loss compensation benefits 

because appellant no longer had disability causally related to the accepted September 22, 2003 

employment injuries. It determined that the special weight of the medical evidence rested with 

the March 24, 2016 impartial medical report of Dr. Levine. Appellant was afforded 30 days to 

submit additional evidence or argument. He did not respond within the allotted time. 

By decision dated May 17, 2016, OWCP terminated appellant’s wage-loss compensation, 

effective May 18, 2016. It accorded special weight to Dr. Levine’s March 24, 2016 report. 

OWCP did not terminate appellant’s medical benefits. 

On June 20, 2016 appellant requested reconsideration and submitted medical evidence. 

In an April 26, 2016 cervical spine magnetic resonance imaging (MRI) scan report, Dr. Mary E. 

Below, a Board-certified radiologist, provided an impression of changes of spondylosis, mild or 

mild-to-moderate central stenosis at C5-6 with a right paracentral protrusion/extrusion, mild 

central stenosis at C4-5, foraminal narrowing, severe left foraminal narrowing at C3-4, severe 

right foraminal narrowing at C4-5, and other changes of spondylosis as discussed above. She 
5

also provided an impression of no compression fracture. In an April 26, 2016 lumbar spine MRI 

scan report, Dr. Below provided an impression of no compression fractures, significant central 

stenosis, or clear or direct nerve root impingement. In addition, she provided an impression of 

mild lateral recess narrowing. 

In a May 24, 2016 report, Dr. Green-Mack noted a history of the September 22, 2003 

employment injuries and restated her diagnoses of cervical disc derangement without 

myelopathy, cervicogenic headache, sacroiliitis, lumbar intervertebral disc displacement, and 

postconcussion headache. She reviewed the April 26, 2016 cervical and lumbar MRI scan 

results and reported the same examination findings as set forth in her October 14, 2015 report. 

Dr. Green-Mack also reiterated her prior opinion that appellant’s conditions were caused by the 

September 22, 2003 employment injuries and that she agreed with Dr. Lee’s permanent 

restrictions. She concluded that he was disabled for any gainful employment. 

In a December 16, 2015 report, appellant’s physical therapist noted a diagnosis of 

occipital neuralgia sciatica and ordered a functional capacity evaluation (FCE). 

By decision dated September 16, 2016, OWCP denied modification of the May 17, 2016 

decision. It found that the medical evidence submitted did not provide a rationalized medical 

opinion substantiating that appellant continued to be disabled due to the accepted employment 

conditions. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation. After it has been determined that an employee has disability 

causally related to his or her employment, OWCP may not terminate compensation without 

establishing that the disability had ceased or that it was no longer related to the employment.5 Its 

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based 

on a proper factual and medical background.6 

Section 8123 (a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.7 The implementing regulations 

state that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination and 

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.8

 In situations where there exist opposing medical reports of virtually 

equal weight and rationale and the case is referred to an impartial medical specialist for the 

 5 Jason C. Armstrong, 40 ECAB 907 (1989). 

6 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

7

 5 U.S.C. § 8123(a). 

8

 20 C.F.R. § 10.321. 
6

purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized 

and based upon a proper factual background, must be given special weight.9

ANALYSIS -- ISSUE 1 

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

compensation benefits, effective May 18, 2016. 

OWCP accepted that appellant sustained an aggravation of cervical and lumbar 

degenerative disc disease while in the performance of duty and paid wage-loss compensation 

benefits. It subsequently determined that a conflict in medical evidence had been created 

between the opinions of Dr. Green-Mack, an attending Board-certified physiatrist, and Dr. Lett, 

an OWCP referral Board-certified neurologist, regarding whether appellant had any continuing 

residuals or disability causally related to the accepted employment injuries. OWCP then 

properly referred him to Dr. Levine, a Board-certified orthopedic surgeon, for an impartial 

evaluation. 

The Board finds that Dr. Levine’s impartial medical opinion is entitled to special weight 

and establishes that appellant no longer has any disability due to the accepted employment 

injuries. In his March 24, 2016 report, Dr. Levine reviewed the SOAF and the medical file and 

noted essentially normal findings on physical examination. He opined that while appellant 

needed nonsteroidal anti-inflammatory drugs to treat degenerative changes in his cervical and 

lumbar spine, appellant could perform his rural carrier position without restrictions. Dr. Levine 

reasoned that there were no objective findings consistent with his subjective complaints. 

The Board finds that Dr. Levine provided a comprehensive, well-rationalized opinion in 

which he clearly found that appellant could return to his preinjury job. Dr. Levine had full 

knowledge of the relevant facts and the course of appellant’s condition. His opinions were based 

on proper factual and medical history and on the statement of accepted facts. Dr. Levine’s 

reports contained a detailed summary of the history of the claim.10 Additionally, he addressed 

the medical records, examined appellant, and reached a reasoned conclusion regarding 

appellant’s conditions.11 Dr. Levine’s opinion is entitled to the special weight accorded an 

impartial examiner and constitutes the weight of the medical evidence.12 OWCP, therefore, 

properly terminated appellant’s wage-loss compensation benefits on May 18, 2016 based on 

Dr. Levine’s opinion.13

 9 See M.W., Docket No. 16-0959 (issued October 6, 2016); James P. Roberts, 31 ECAB 1010 (1980). 

10 See R.G., Docket No. 16-0271 (issued May 18, 2017). 

11 Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy and 

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 are facts, which determine the weight to be given 

to each individual report). 

12 See Melvina Jackson, 38 ECAB 443 (1987).

13 Manuel Gill, 52 ECAB 282 (2001). 
7

LEGAL PRECEDENT -- ISSUE 2 

Once OWCP properly terminates a claimant’s compensation benefits, the burden of proof 

shifts to the claimant to establish that he has continuing disability after that date related to his 

accepted injury.14 To establish causal relationship between the condition as well as any attendant 

disability claimed and the employment injury, a claimant employee must submit rationalized 

medical evidence based on a complete medical and factual background, supporting such a causal 

relationship.15 Causal relationship is a medical issue and the medical evidence required to 

establish a causal relationship is rationalized medical evidence.16

ANALYSIS -- ISSUE 2 

Following the termination of his wage-loss compensation benefits appellant submitted 

Dr. Green-Mack’s May 24, 2016 report. In this report, Dr. Green-Mack reiterated the findings of 

Dr. Below’s cervical and lumbar MRI scan results, examination findings, diagnoses of cervical 

disc derangement without myelopathy, cervicogenic headache, sacroiliitis, lumbar intervertebral 

disc displacement, and postconcussion headache, and opined that these conditions were causally 

related to the accepted September 22, 2003 employment injuries as set forth in her prior report of 

October 14, 2015. She also opined that appellant was disabled for any gainful employment. 

However, Dr. Green-Mack failed to provide medical rationale explaining how appellant’s 

residuals of the accepted employment injuries resulted in his continuing disability for work. The 

Board has held that a medical opinion not fortified by rationale is of diminished probative 

value.17 Moreover, the Board has long held that reports from a physician who was on one side of 

a medical conflict that an impartial medical specialist resolved, are generally insufficient to 

overcome the special weight accorded to the report of the impartial medical specialist, or to 

create a new conflict.18 The Board finds that as Dr. Green-Mack was on one side of the conflict 

resolved by Dr. Levine, Dr. Green-Mack’s additional report is of insufficient weight to overcome 

the special weight accorded to Dr. Levine’s opinion or to create a new medical conflict. 

Dr. Below’s April 26, 2016 cervical and lumbar MRI scan reports did not offer an 

opinion on the relevant issue of whether appellant had employment-related disability due to the 

accepted work-related conditions. The Board has found that medical evidence that does not offer 

any opinion regarding the cause of an employee’s condition is of limited probative value on the 

issue of causal relationship.19 The Board finds that Dr. Below’s reports are insufficient to 

establish continuing employment-related disability. 

 14 Id.

15 Id.

16 Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

17 M.F., Docket No. 15-0081 (issued January 15, 2016); Franklin D. Haislah, 52 ECAB 457 (2001) (medical 

reports not containing rationale on causal relationship are entitled to little probative value). 

18 R.B., Docket No. 16-1481 (issued May 2, 2017); I.J., 59 ECAB 408 (2008). 

19 C.B., Docket No. 09-2027 (issued May 12, 2010); K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006). 
8

The December 16, 2015 report from appellant’s physical therapist addressed appellant’s 

cervical condition and ordered an FCE. However, this report is of no probative medical value as 

a physical therapist is not considered a physician as defined under FECA.20

Appellant has not provided a probative medical opinion to support that he was disabled 

due to his accepted employment-related injuries. The Board therefore finds that appellant has 

failed to meet his burden of proof to establish continuing disability after May 18, 2016.21

On appeal appellant contends that, based on his medical conditions, he cannot return to 

full duty as a rural carrier which requires him to lift up to 70 pounds. However, his own opinion 

on his ability to work would not be a substitute for probative medical evidence as lay persons are 

not physicians under FECA and, thus, are not competent to render medical opinions.22 As found 

above, the medical record does not demonstrate that appellant was disabled for work on and after 

May 18, 2016 due to the accepted work injuries. 

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 benefits effective, May 18, 2016. The Board further finds that appellant has failed 

to meet his burden of proof to establish continuing employment-related disability after 

May 18, 2016. 

 20 5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J. 

McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal 

relationship can only be resolved through the submission of probative medical evidence from a physician). 

21 See G.G., Docket No. 15-0985 (issued August 21, 2015); Virginia Davis-Banks, 44 ECAB 389 (1993); Dorothy 

Sidwell, 41 ECAB 857 (1990). 

22 See L.L., Docket No. 16-0896 (issued September 23, 2016); James A. Long, 40 ECAB 538 (1989). 
9

ORDER 

IT IS HEREBY ORDERED THAT the September 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 29, 2017 

Washington, DC 

 

 Christopher J. Godfrey, 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