United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Perry, GA, Employer 

__________________________________________ 

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Docket No. 15-1204 

Issued: September 23, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 May 5, 2015 appellant filed a timely appeal from a November 12, 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.2

ISSUES 

The issues are: (1) whether OWCP properly terminated compensation for wage-loss and 

medical benefits effective January 12, 2014; and (2) whether appellant has established 

continuing residuals or disability after the termination of his compensation benefits. 

 1

 5 U.S.C. § 8101 et seq. 

2

 On appeal, appellant submitted additional evidence. However, the Board lacks jurisdiction to review new 

evidence for the first time on appeal. See 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

On April 28, 2012 appellant, then a 41-year-old rural carrier associate, sustained a neck 

and back injury as she was stopped at a mailbox when her postal vehicle was hit from behind by 

another vehicle. She stopped work on the date of injury. OWCP accepted the claim for sprained 

neck and back (lumbar region). 

Appellant accepted a limited-duty assignment on June 6, 2012 received intermittent 

wage-loss compensation for hours in which the employing establishment was unable to 

accommodate her work restrictions, and on August 26, 2012 she was placed on the periodic 

compensation rolls. 

Initial medical reports assessed cervical sprain, neck sprain, lumbar sprain, and 

degenerative lumbar disc. A June 20, 2013 lumbar spine magnetic resonance imaging (MRI) 

scan showed intervertebral disc space height loss and disc desiccation at L4-5 with a central 

posterior disc protrusion and a high intensity zone suspicious of an annular tear. A cervical spine 

MRI scan revealed mild degenerative changes of the cervical spine more pronounced at C5-6, no 

evidence of acute cervical spine fracture or significant spondylolisthesis, and probable small 

Tornwaldt cyst within the posterior nasopharynx. 

On October 24, 2012 Dr. Daxes Banit, a Board-certified orthopedic surgeon, advised that 

appellant had back and leg pain for three and one half months and that the cause of her 

symptoms was job related when her vehicle was rear-ended. He diagnosed lumbar degenerative 

disc disease, lumbar spondylosis with myelopathy, and thoracic and lumbar neuritis 

radiculopathy. Dr. Banit noted surgical options to address appellant’s symptoms. In a 

December 13, 2012 report, he stated that she had opted for surgery to treat her condition. 

Dr. Banit advised that he would attempt to get appellant’s diagnosis codes updated to reflect her 

current condition instead of the initial sprain diagnosis. 

On December 27, 2012 Dr. Keathren Scott Malone, a Board-certified physiatrist and an 

associate of Dr. Banit, advised that conservative treatment failed to give appellant any long-term 

relief. He noted that Dr. Banit requested surgical authorization. Dr. Malone acknowledged that 

appellant’s current accepted conditions did not warrant the requested surgery, but requested that 

the claim be expanded to include lumbar degenerative disc disease, spondylosis with 

myelopathy, and lumbosacral neuritis or radiculitis. 

On January 31, 2013 OWCP referred appellant to Dr. Raju Vanapalli, a Board-certified 

orthopedic surgeon, for a second opinion regarding the status of her work-related conditions and 

whether she needed surgery. In a report dated April 23, 2013 from a February 26, 2013 visit, 

Dr. Vanapalli advised that appellant sustained a neck and lumbar sprain following a car accident. 

On examination of the cervical spine, he noted normal alignment, no paraspinal tenderness, 

spasm, or trigger points, right lateral rotation of 80 degrees, left lateral rotation of 60 degrees, 

right lateral tilt 30 degrees, left tilt 20 degrees, forward flexion 20 degrees, and extension 

20 degrees. On lumbar spine examination, Dr. Vanapalli noted no deformity, normal curvature, 

pain at the lumbosacral junction, mild tenderness over the right paraspinal muscles, no spasm, no 

trigger point, forward flexion 60 degrees, extension 10 degrees, side to side tilt 30 degrees. He 

noted that appellant’s current diagnoses were degenerative disc disease, disc desiccation, 
3

and protrusion at L4-5, cervical sprain, lumbar sprain, and lumbar radiculitis. Dr. Vanapalli 

opined that her work-related diagnoses, cervical, and lumbar sprain, were resolved. He stated 

that the strain of paraspinal muscles, cervical spine, and lumbar spine were generally resolved in 

three to six months. Dr. Vanapalli advised that he could not substantiate any continuing 

residuals of the injury with objective findings on examination. He advised that appellant’s 

complaints of pain were radicular in nature and attributable to degenerative disc disease and not 

the work-related sprains. Dr. Vanapalli opined that she was not capable of performing the duties 

of her job. He further opined that he saw no indication for surgical intervention. 

OWCP determined that there was a medical conflict between the treating physicians, 

Drs. Malone and Banit, and OWCP referral physician, Dr. Vanapalli, regarding whether the 

accepted conditions had resolved, whether the claim should be expanded, and whether appellant 

required surgery. It scheduled a referee examination with Dr. Charles Hopkins, a Board-certified 

orthopedic surgeon. 

In a September 12, 2013 report, Dr. Hopkins noted the history of appellant’s injury and 

treatment history. He found that diagnostic testing revealed a hint of degenerative changes at 

C6-7, no more than that expected due to age, mild disc space height at L3-4, large bulge without 

canal or neural foraminal stenosis at L4-5, and a central disc protrusion suggestive of mild spinal 

canal stenosis without significant foraminal narrowing, and the L5-S1 was suspicious of a 

possible annular tear at L4-5. On examination, appellant had full range of neck motion without 

radicular signs. Straight leg raising caused low back pain. Motor and sensory examination of 

the legs was normal. Dr. Hopkins assessed chronic low back pain without objective evidence of 

radiculopathy, and a history of a cervical strain which was apparently resolved. He noted that 

Dr. Banit recommended an L4-5 fusion; however, he noted that the June 20, 2012 MRI scan only 

showed mild stenosis at L4-5. Dr. Hopkins opined that Dr. Banit’s assessment of narrowing of 

the recesses at L5 was contradicted by the MRI scan report. He opined that appellant had 

chronic low back pain with no evidence of radiculopathy and that there was nothing to suggest 

any ongoing pathology secondary to her initial complaint. 

Dr. Hopkins advised that any lumbar strain should have resolved within the first three to 

four months. He stated that appellant’s objective findings were most compatible with typical 

age-related changes. Dr. Hopkins stated that he was concerned about her heavy use of narcotics 

which were of no benefit to her condition. He noted that subjective complaints far outweighed 

objective clinical findings and opined that there were no objective findings that would preclude 

appellant from returning to her rural carrier position. However, lifting 70 pounds would possibly 

aggravate her nonwork-related condition and that lifting 20 to 50 pounds would be more 

reasonable. Dr. Hopkins advised that appellant was at maximum medical improvement and 

opined that the June 20, 2012 MRI scan and other objective evidence did not indicate a condition 

that was surgically correctable. 

By letter dated December 2, 2013, 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. Hopkins who found no residuals of her accepted conditions and 

that she was no longer disabled from work. 
4

In a December 11, 2013 report, Dr. Banit noted reviewing Dr. Hopkins’ report. On 

examination he noted tenderness at the midline of the back, difficulty with heel raise on the right, 

difficulty with toe raise on the left, positive straight leg raise, diminished sensation in the right 

anterior leg, and dorsum of the foot. Dr. Banit assessed lumbar degenerative disc disease, and 

lumbosacral neuritis or radiculitis. He noted that he agreed with Dr. Hopkins that appellant did 

not have significant central stenosis, but reiterated that his view of the films revealed a tear at 

L4-5 and recess narrowing. Dr. Banit noted that his recommendation for surgery was based on 

her significant course of therapy, medications, and selective injections, with only transient relief. 

Dr. Banit reiterated his request for surgery in his December 31, 2013 report due to the 

relief patterns appellant achieved with nerve root blocks. He opined that she continued to 

experience residual medical problems from the work injury. 

In a December 31, 2013 statement, appellant argued that a conflict in the medical opinion 

evidence remained with regard to whether there had been an aggravation of her degenerative disc 

disease and that the reports by Dr. Vanapalli and Dr. Hopkins were not sufficiently rationalized 

to uphold termination. 

By decision dated January 10, 2014, OWCP terminated appellant’s wage-loss and 

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

represented by Dr. Hopkins. 

By letter dated January 23, 2014, appellant requested an oral hearing. In a January 27, 

2014 diagnostic report, Dr. Michael Todd Jones, Board-certified in diagnostic radiology, advised 

that an MRI scan of the lumbar spine revealed abnormal linear signal in the left paracentral 

location virtually identical to the prior examination suggesting an annular tear or perhaps a 

miniscule paracentral disc protrusion without appreciable mass effect and no neuroforaminal 

narrowing at L4-5. 

In an April 30, 2014 operative report, Dr. Banit advised that appellant underwent 

decompressive laminectomy, foraminotomy, partial facetectomy, and spinal fusion of L4-5. 

Also provided were preoperative reports which assessed worsening weakness in the lower back. 

Subsequent to the surgery, progress reports were provided from Dr. Banit beginning on 

May 21, 2014. Dr. Banit advised that appellant saw a 75 percent improvement following 

surgery. He advised that her pain was moderate and intermittent, but not hindering function and 

daily life to the same extent as prior to surgery. Dr. Banit assessed low back pain and lumbar 

postlaminectomy. 

On September 9, 2014 a telephone hearing took place. Appellant argued that 

Dr. Hopkins’ report was not sufficiently rationalized to constitute the weight of the evidence. 

She argued that her claim should have been expanded to include aggravation of her preexisting 

lumbar degenerative disc disease, yet neither Dr. Hopkins, nor Dr. Vanapalli addressed whether 

the work injury aggravated her preexisting lumbar condition. Appellant also contended that 

Dr. Hopkins did not properly address the annular tear. She noted that she had been able to work 

without restrictions prior to the injury, yet following the injury both the second opinion and 

referee physician opined that she was unable to perform her job duties. Appellant also argued 
5

that Dr. Hopkins suggested a dependency on prescribed narcotics; therefore, OWCP should have 

evaluated whether this was a residual of her work injury. 

In a September 24, 2014 report, Dr. Banit detailed appellant’s treatment history. He 

advised that he requested that OWCP update her accepted conditions. Dr. Banit opined that 

appellant’s lumbar conditions were a result of her April 28, 2012 work-related injury. 

By decision dated November 12, 2014, an OWCP hearing representative affirmed the 

January 10, 2014 decision of OWCP. 

On appeal appellant argues that the oral hearing did not address whether her claim should 

have been expanded to include additional accepted conditions. She also argues that she did not 

have any preexisting cervical of lumbar degenerative disc disease. Appellant contends that the 

pain she was experiencing was caused by the annular tear and disc herniation at L4-5, not the 

degenerative disc disease and that the surgical intervention performed by Dr. Banit instantly 

relieved her pain and numbness. She had now returned to her position as a rural carrier. 

LEGAL PRECEDENT -- ISSUE 1 

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

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

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

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

employment.3 The right to medical benefits for an accepted condition is not limited to the period 

of entitlement to compensation for disability. To terminate authorization for medical treatment, 

OWCP must establish that appellant no longer has residuals of an employment-related condition 

which require further medical treatment.4

 

FECA provides that, if there is a 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 the examination.5 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 or impartial examination and OWCP 

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

connection with the case.6

 

 3 Kenneth R. Burrow, 55 ECAB 157 (2003). 

4 Furman G. Peake, 41 ECAB 361 (1990). 

5

 5 U.S.C. § 8123(a). 

6

 20 C.F.R. § 10.321. 
6

It is well established that, when a case is referred to an impartial medical specialist for the 

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

based on a proper factual, and medical background, must be given special weight.7

 

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s traumatic injury claim for sprained neck and sprained back 

in the lumbar region. Appellant received wage-loss compensation and medical benefits based on 

the accepted conditions. On October 24, 2012 Dr. Banit advised that she had work-related 

conditions and on December 13, 2012 he stated that she had opted for surgery and that her 

conditions should be upgraded beyond the accepted sprains. In his December 27, 2012 report, 

Dr. Malone, Dr. Banit’s associate, requested surgical authorization and requested that the 

accepted conditions be expanded to include lumbar degenerative disc disease, spondylosis with 

myelopathy, and lumbosacral neuritis or radiculitis. OWCP referred appellant to Dr. Vanapalli 

for a second opinion regarding the status of her accepted condition. Dr. Vanapalli opined that 

her work-related diagnoses, cervical and lumbar sprain, were resolved and that there was no 

indication of a need for surgery. OWCP found that this created a conflict of medical opinion. 

Therefore, in accord with 5 U.S.C. § 8123(a), OWCP properly referred the case to Dr. Hopkins 

for a referee examination and an opinion as to whether appellant continued to have employmentrelated residuals, whether the claim should be expanded and whether surgery should be 

authorized. 

In his September 12, 2013 report, Dr. Hopkins provided a history, results on examination, 

and reviewed medical evidence. He opined that appellant had chronic low back pain with no 

objective evidence of radiculopathy and that there was no evidence of any ongoing pathology 

secondary to her initial complaint. Dr. Hopkins advised that any lumbar strain should have 

resolved within the first three to four months. He also indicated that the cervical sprain had 

resolved. Dr. Hopkins stated that appellant’s findings were most compatible with typical 

age-related changes. He explained that, while Dr. Banit recommended an L4-5 fusion, a June 20, 

2012 MRI scan only showed mild stenosis at L4-5. Dr. Hopkins noted that subjective 

complaints far outweighed objective clinical findings as there were no objective clinical findings. 

He opined that appellant could return to her regular duties although lifting 70 pounds or more 

could possibly aggravate her nonwork-related condition. Dr. Hopkins advised that the June 20, 

2012 MRI scan and other objective evidence did not indicate a condition that was surgically 

correctable. He noted no basis on which residuals of any condition were attributable to 

appellant’s employment. 

The Board finds that the weight of the medical evidence rests with the well-rationalized 

report of Dr. Hopkins. Dr. Hopkins’ opinion is based on a complete and accurate factual and 

medical history and is entitled to special weight. The Board finds that OWCP met its burden of 

proof to terminate wage-loss compensation effective January 12, 2014. 

In response to OWCP’s proposed termination, appellant provided additional medical 

evidence. On December 11, 2013 Dr. Banit noted reviewing Dr. Hopkins’ report. He assessed 

 7 Gloria J. Godfrey, 52 ECAB 486, 489 (2001). 
7

lumbar degenerative disc disease, and lumbosacral neuritis or radiculitis. Dr. Banit agreed with 

Dr. Hopkins that appellant did not have significant central stenosis, but reiterated that his view of 

the films showed a tear at L4-5 and recess narrowing. He recommended surgery since all other 

modes of treatment provided only transient relief. On December 31, 2013 Dr. Banit opined that 

appellant continued to have residuals from the work injury. 

Although Dr. Banit provides some support for a continuing employment-related 

condition, he was on one side of the conflict that Dr. Hopkins resolved. The Board has held that 

reports from a physician who was on one side of a medical conflict are generally insufficient to 

overcome the weight accorded to the report of the impartial medical examiner or to create a new 

conflict.8

The Board finds that Dr. Hopkins represents the weight of the medical evidence. 

LEGAL PRECEDENT -- ISSUE 2 

It is well established that after termination or modification of benefits, clearly warranted 

on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. 

In order to prevail, appellant must establish by the weight of the reliable, probative, and 

substantial evidence that she had an employment-related disability or residuals which continued 

after termination of compensation benefits.9

 

ANALYSIS -- ISSUE 2 

OWCP accepted that appellant sustained a sprained neck and back. It properly 

terminated his wage-loss and medical benefits effective January 12, 2014 based on the opinion of 

Dr. Hopkins, the referee physician, who found that the accepted neck and back sprain had ceased 

without residuals and no residuals of appellant’s condition were attributable to the work injury. 

The burden now shifts to appellant to demonstrate that she continued to have residuals or 

disability for work on and after January 12, 2014 due to the accepted injury.10 

Dr. Banit provided preoperative and postoperative status reports. In his September 24, 

2014 report, he attributed appellant’s lumbar conditions to the accepted work injury and 

requested that OWCP expand the accepted conditions. Appellant also provided a January 27, 

2014 MRI scan report from Dr. Jones. This evidence is insufficient to create a new conflict with 

or to overcome the weight of Dr. Hopkins’ report. Most of these reports are of limited probative 

value because they do not address causal relationship.11 Furthermore, while Dr. Banit’s 

September 24, 2014 report supports for causal relationship it is insufficient to create a new 

conflict with or to overcome the weight of Dr. Hopkins’ report. As noted, reports from a 

 8

 E.H., Docket No. 08-1862 (issued July 8, 2009); Jaja K. Asaramo, 55 ECAB 200 (2004). 

9 See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992). 

10 Virginia Davis-Banks, id. 

11 See Jaja K. Asaramo, supra note 8 (medical evidence that does not offer any opinion regarding the cause of an 

employee’s condition is of diminished probative value on the issue of causal relationship). 
8

physician who was on one side of a medical conflict are generally insufficient to overcome the 

weight accorded to the report of the impartial medical examiner or to create a new conflict.12 

Dr. Banit did not provide any new rationale to explain why appellant’s continuing condition was 

employment related. 

On appeal appellant argues that the September 9, 2014 oral hearing did not address 

whether her claim should have been expanded to include additional accepted conditions. She 

also argues that she did not have any preexisting cervical or lumbar degenerative disc. Appellant 

attributes her continuing disability to an annular tear and disc herniation at L4-5; however, these 

conditions have not been accepted by OWCP. The Board had held that 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.13 Appellant did not meet her burden of proof to establish that an annular 

tear and disc herniation at L4-5 were causally related to the work incident. 

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 and that she has failed to meet her burden of proof to establish any 

continuing disability or medical residuals on or after January 12, 2014. 

 12 See supra note 8. 

13 Id.; T.M., Docket No. 08-975 (issued February 6, 2009). 
9

ORDER 

IT IS HEREBY ORDERED THAT the November 12, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 23, 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