United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kearny, NJ, Employer 

__________________________________________ 

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Docket No. 15-498 

Issued: June 16, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

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 January 8, 2015 appellant, through counsel, filed a timely appeal from the 

September 24, 2014 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. 

ISSUE 

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

compensation benefits effective February 12, 2014 as he had no residuals of the accepted 

conditions. 

FACTUAL HISTORY 

On November 2, 2010 appellant, then a 26-year-old mail handler, filed a claim (Form 

CA-2a) alleging that on November 1, 2010 she sustained a recurrence of disability attributable to 

 1

 5 U.S.C. § 8101 et seq. 
2

her February 9, 2010 injury which had been accepted for right shoulder sprain and impingement, 

right upper back/scapular strain, thoracic strain, and subluxations of T5-7. She stopped work on 

November 2, 2010. OWCP developed this as a claim for a new injury and accepted the new 

claim for brachial neuritis or radiculitis and other affections of the shoulder region not elsewhere 

classified.2 It began paying wage-loss compensation on November 1, 2010. 

In a December 7, 2010 report, Dr. Edward Novik, Board-certified in pain medicine and 

anesthesiology, advised that appellant initially injured her neck on February 9, 2010 while lifting 

a heavy box. Appellant eventually recovered and returned to work in April 2010, but the pain 

had returned in November 2010 and she needed additional treatment. A magnetic resonance 

imaging (MRI) scan of the cervical spine showed moderate bulging at C3-4, C4-5 impressing on 

the anterior thecal sac. Dr. Novik assessed cervical radiculopathy and cervical facet syndrome. 

He continued submitting reports noting appellant’s status. 

On January 2, 2013 OWCP requested that appellant provide a medical report addressing 

her current status and an opinion as to whether her accepted conditions remained present and 

active. In a January 24, 2013 report, Dr. Novik advised that appellant complained of neck and 

mid-back pain. He noted that she was injured at work on November 1, 2010. Dr. Novik further 

noted that appellant was being treated with injections and physical therapy. On physical 

examination he advised that she had decreased range of motion in the cervical spine with pain on 

extension and lateral rotation to the right. Dr. Novik also noted muscle spasm and tenderness 

along the right paraspinal muscles in the projection of the right facet joints and significant 

tenderness in the mid-back area in the thoracic spine that radiated to the right scapula. He 

assessed cervical facet syndrome, thoracic radiculopathy, and herniated thoracic disc. Dr. Novik 

noted appellant’s future treatment plan and advised that she was unable to return to work because 

she could not stand for more than a few hours at a time. In a January 24, 2013 attending 

physician’s report, he diagnosed cervical/thoracic radiculopathy and herniated discs. Dr. Novik 

advised that appellant was totally disabled and checked a box “yes” that her condition was 

employment related. 

On March 21, 2013 OWCP referred appellant, together with the medical record and a 

statement of accepted facts to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for a 

second opinion regarding appellant’s status and whether she had residuals of her accepted 

conditions. In his April 4, 2013 report, Dr. Lakin advised that appellant was employed as a mail 

handler with the employing establishment. He noted that she injured her right shoulder and neck 

on November 1, 2010 and that she had a work-related injury on February 9, 2010 where she was 

diagnosed with a right shoulder sprain. Dr. Lakin further noted that appellant complained of 

occasional pain with turning the neck which radiated down to the right shoulder and thoracic 

spine, pain with prolonged positions such as sitting and standing, and occasional pain to the right 

shoulder with overhead activities. 

On physical examination Dr. Lakin noted that the cervical spine was nontender with full 

active range of motion in all planes tested with 60 degrees of extension, 50 degrees of flexion, 

and 80 degrees of lateral rotation left and right. Examination of the thoracic spine revealed that 

 2

 The claim pertaining to the February 9, 2010 injury is not presently before the Board. 
3

it was nontender, appellant was able to forward flex six inches from fingertips to toes, and there 

was a negative straight leg raise in the sitting and supine positions. Motor examination of the 

arms and legs was normal. Right shoulder examination revealed that it was nontender, negative 

impingement, negative drop arm test, negative anterior apprehension, and full and symmetric 

range of motion to the left with 180 degrees forward flexion, 175 degrees abduction, and 92 

degrees internal and external rotation. Strength was normal. 

Dr. Lakin noted that the November 4, 2010 MRI scan of the cervical spine revealed 

bulging at C3-4 and C4-5 and a May 25, 2011 MRI scan of the thoracic spine revealed central 

herniation of T5 to T6. He opined that appellant’s accepted conditions were resolved and that 

there were no objective findings on examination. Dr. Lakin further opined that she was not 

disabled from work and that she could return to work full time without restrictions. He advised 

that appellant had no other current diagnoses. Dr. Lakin noted that her examination was 

essentially unremarkable and that there was no need for further treatment of the accepted 

conditions. In an April 4, 2013 work capacity evaluation form, he advised that appellant was 

capable of performing her usual job. 

By letter dated January 7, 2014, OWCP advised appellant that it proposed a termination 

of wage-loss and medical compensation benefits. It advised that the weight of the evidence was 

represented by Dr. Lakin, who found that there were no residuals of her accepted conditions and 

that she was no longer disabled from work. 

In a January 16, 2014 statement, counsel for appellant argued that there was a conflict in 

the medical evidence because the attending physician maintained that she still had residuals of 

the work injury. He also argued that Dr. Lakin failed to provide medical reasoning, his answers 

were short with no medical basis, he did not discuss her positive imaging results, and that there 

was no evidence that he was familiar with the requirements of her position. In a February 7, 

2014 attending physician’s report, Dr. Novik restated appellant’s diagnoses and advised that she 

was totally disabled. He checked a box “yes” to indicate that her condition was work related. 

An accompanying February 7, 2014 work capacity evaluation advised that appellant was unable 

to work. 

By decision dated February 12, 2014, OWCP terminated appellant’s wage-loss and 

medical benefits effective February 12, 2014. It found that the weight of medical opinion was 

represented by Dr. Lakin. 

By letter dated February 20, 2014, counsel for appellant requested an oral hearing. Later 

on June 10, 2014 he requested a change from an oral argument to a review of the written record. 

In a March 20, 2014 report, Dr. Novik reiterated the history of appellant’s injury and 

treatment history. He noted that initially appellant was experiencing neck pain that radiated 

down to her right shoulder. Dr. Novik advised that currently appellant was under his care for 

thoracic and cervical spine conditions. On physical examination he found significantly 

decreased range of motion in the cervical spine with positive Spurling’s sign on the left, 

diminished right motor function, diminished deep tendon reflexes in the right upper extremity, 

and significant muscle spasm and tenderness along the cervical paraspinal muscles. Dr. Novik 

noted that an MRI scan of the cervical spine revealed moderate disc bulging at C3-4 and C4-5. 
4

He assessed cervical radiculopathy and cervical facet syndrome. Dr. Novik opined that appellant 

sustained an aggravation of her cervical complaints, thoracic herniated discs, and cervical and 

thoracic subluxation as a result of the November 1, 2010 work injury. He stated that appellant’s 

injuries caused permanent changes to the discs and joints. Also submitted were February 6 and 

May 15, 2014 treatment reports, in which Dr. Novik noted appellant’s status and restated 

diagnoses. 

By decision dated September 24, 2014, an OWCP hearing representative affirmed the 

termination of appellant’s wage-loss and medical benefits. 

On appeal counsel maintained that there was a conflict in the medical record. 

LEGAL PRECEDENT 

Once OWCP has accepted a claim, it has the burden of justifying termination or 

modification of compensation benefits,3

 which includes furnishing rationalized medical opinion 

evidence based on a proper factual and medical background.4 Having determined that an 

employee has a disability causally related to his or her federal employment, it may not terminate 

compensation without establishing that the disability ceased or was no longer related to the 

employment.5 The right to medical benefits for an accepted condition, on the other hand, is not 

limited to the period of entitlement to disability compensation. To terminate authorization for 

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

employment-related condition, which would require further medical treatment.6

ANALYSIS 

OWCP accepted appellant’s claim for brachial neuritis or radiculitis and other affections 

of the shoulder region not elsewhere classified. Appellant received wage-loss compensation and 

medical benefits based on the accepted conditions. In 2013, OWCP referred her to Dr. Lakin for 

a second opinion regarding the status of her accepted conditions. 

In his March 21, 2013 report, Dr. Lakin set forth the history of appellant’s accepted 

conditions, reviewed the medical treatment records related to her conditions and reviewed the 

statement of accepted facts. He noted her history and reported detailed findings on examination. 

While appellant reported occasional pain with turning her neck and with prolonged positions, 

Dr. Lakin did not note any positive findings on examination. He indicated that the examination 

was normal including motor examination as well as all examined ranges of motion. Based on 

this, Dr. Lakin determined that accepted conditions had totally resolved because there were no 

objective findings on examination. He noted the accepted conditions but advised that there were 

no objective findings on these conditions on his evaluation. Dr. Lakin further opined that 

 3 I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961). 

4 D.C., Docket No. 09-1070 (issued November 12, 2009); Larry Warner, 43 ECAB 1027 (1992). 

5 I.J., supra note 3. 

6 L.G., Docket No. 09-1692 (issued August 11, 2010); Furman G. Peake, 41 ECAB 361, 364 (1990). 
5

appellant was not disabled from work and that she could return to work full time without 

restrictions. He found no basis on which to attribute any continuing condition or disability to her 

employment. 

Appellant provided reports from Dr. Novik. These included a January 24, 2013, report in 

which Dr. Novik advised that appellant complained of neck and mid-back pain. Dr. Novik noted 

that appellant had decreased range of motion in the cervical spine with pain on extension and 

lateral rotation to the right. He also noted muscle spasm and tenderness along the right 

paraspinal muscles and significant mid-back tenderness that radiated to the right scapula. 

Dr. Novik assessed cervical facet syndrome, thoracic radiculopathy, and herniated thoracic disc. 

He advised that appellant was unable to return to work. On March 20, 2014 Dr. Novik reiterated 

her history and noted findings. He assessed cervical radiculopathy and cervical facet syndrome. 

Dr. Novik opined that appellant sustained an aggravation of her cervical complaints, thoracic 

herniated discs, and cervical and thoracic subluxation as a result of the November 1, 2010 work 

injury. He also submitted attending physician’s reports supporting continuing work-related 

conditions. The Board finds that the submitted reports are of diminished probative value and do 

not overcome the weight of Dr. Lakin’s report, nor do they create a conflict in the medical 

record.7

 Although he attributed appellant’s current conditions to the work incident, Dr. Novik 

does not provide medical rationale to support his opinion.8

 This is especially important where he 

diagnosed conditions that were not accepted by OWCP as employment related.9 Dr. Novik does 

not explain the reasons why appellant’s current conditions are related to the accepted conditions 

of brachial neuritis or radiculitis and other affections of the shoulder region. He also did not 

provide any medical reasoning to support that the accepted conditions continued. 

The Board finds that the weight of medical opinion is represented by the report of 

Dr. Lakin whose report was based on a full and accurate history, a review of the medical records, 

and provided a rationalized medical opinion addressing the basis for his conclusion that appellant 

was no longer disabled from work and that her diagnosed conditions were resolved. In contrast, 

the reports by Dr. Novik do not provide medical rationale to explain why the accepted conditions 

continued or how they caused appellant’s current diagnosed conditions. 

On appeal, counsel asserted that there was a conflict in the medical evidence; however, a 

conflict only occurs when there are two reports of virtually equal weight and rationale that reach 

 7 See 5 U.S.C. § 8123(a) (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). 

8 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not 

fortified by medical rationale is of little probative value). 

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

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

condition is causally related to the employment injury). 
6

opposing conclusions.10 Here, Dr. Novik’s report is of diminished probative value for the 

reasons explained. 

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 

compensation benefits effective February 12, 2014. 

ORDER 

IT IS HEREBY ORDERED THAT the September 24, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 16, 2015 

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 

 10 See James P. Roberts, 31 ECAB 1010 (1980). See John D. Jackson, 55 ECAB 465 (2004) (a simple 

disagreement between two physicians does not, of itself, establish a conflict; to constitute a conflict of medical 

opinion, the opposing physicians’ reports must be of virtually equal weight and rationale).