United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Bernardino, CA, Employer 

__________________________________________ 

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Docket No. 14-1471 

Issued: May 22, 2015 

Appearances: Case Submitted on the Record

Stephen Millard, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 16, 2014 appellant, through her representative, filed a timely appeal from a 

January 24, 2014 merit decision and an April 17, 2014 nonmerit 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 appellant’s wage-loss and 

medical benefits effective January 24, 2014; and (2) whether it properly refused to reopen her 

case for further review of the merits of her claim under 5 U.S.C. § 8128(a). 

                                                             1

 5 U.S.C. § 8101 et seq.

2

 Appellant submitted additional evidence on appeal. The Board is precluded from reviewing new evidence. 20 

C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952). 
2

FACTUAL HISTORY 

On April 19, 2012 appellant, then a 53-year-old mail processor filed an occupational 

disease claim alleging that she sustained a back condition due to 25 years of repetitive activities 

such as repetitively lifting containers of mail weighing up to 40 pounds. She indicated that her 

back was hurting her on and off for more than five years and continuously since her fall at work 

on September 2, 2011.3 Appellant stopped work on September 8, 2011. 

In a March 15, 2012 report, Dr. Glenn M. Ford, a family practitioner, diagnosed upper 

and lower back pain, lumbosacral spine sprain/strain, lumbosacral degenerative joint disease, 

depression (nonoccupational), and thoracic spine sprain/strain. He prescribed restrictions for 

limited duty. 

In an April 19, 2012 report, Dr. Edward Mittleman, a family practitioner and treating 

physician noted appellant’s history.4 He explained that her workplace activities caused her to be 

in a weight bearing position and to engage in twisting and lifting various weighted containers. 

These activities placed stresses upon appellant’s vertebral axial skeletal system and resulted in 

chronic strain/sprain and tears of the supportive muscles/ligaments. Dr. Mittleman explained 

that, while she had degenerative lumbar changes, they were aggravated and accelerated by the 

constant twisting, lifting, pushing, and pulling of the lumbar tissues upon the bony vertebrae over 

a period of 25 years in her various clerical positions. He noted that appellant was asymptomatic 

in her back before her employment with the employing establishment and without any history of 

back injury or degeneration. Dr. Mittleman explained that changes in joint biomechanics were 

important to the pathogenesis of osteoarthritis/lumbar facet arthropathy and, once she began 

work for the employer her biomechanics significantly changed in response to her work duties. 

He opined that “bone formation (lumbar facet arthropathy/osteoarthritis) is one of the major 

components of the response of the skeletal system to the stress placed upon it by [appellant’s 

clerical] duties.” Dr. Mittleman indicated that, while appellant had a traumatic injury to the back 

on September 2, 2011, the lumbar sprain/strain was superimposed upon lumbar facet arthropathy 

(disc degeneration/osteoarthritis) which has been aggravated and accelerated by 25 years of work 

activities. He opined that she continued to suffer from her condition. 

                                                             3

 Appellant has a separate claim, File No. xxxxxx381, for a September 2, 2011 injury which is accepted for 

lumbar sprain, right hand sprain, and bilateral knee contusion. Her benefits under this claim were terminated on 

March 12, 2012. This claim has been doubled with the present claim. 

4

 Dr. Mittleman described the prior injury and explained that on September 2, 2011 appellant injured her low back 

walking toward empty bins. Her left foot tripped on a mat that had rolled up on the floor and she fell violently on 

her hands and knees. Appellant indicated that initially she had a minor contusion that later formed on the inside of 

her left knee. She appeared to feel otherwise unaffected by the fall and declined medical attention. However, 

Dr. Mittleman related that appellant soon began to have a gradual increase in pain and explained that, while she had 

a prior history of low back pain in 1987, her previous back pain had been lessening until the time of the accident. 

He noted that in the days after the fall, she began to have progressively increasing low back pain. Dr. Mittleman 

explained that appellant’s prior symptoms due to her 1987 condition were in the midback region; whereas her 

current symptoms were in the low back. He diagnosed: aggravation/acceleration of lumbar facet arthropathy; 

chronic dorsal strain/sprain, and chronic lumbar strain/sprain. 
3

In a June 1, 2012 report, Dr. Ford diagnosed thoracic spine strain, improved, lumbosacral 

degenerative joint disease, and lumbosacral spine sprain/strain. He indicated that appellant could 

return to modified work on June 1, 2012. Dr. Ford continued to treat appellant. 

On July 20, 2012 OWCP accepted the claim for strain of back, thoracic region, and strain 

of back, lumbar region. It advised appellant that she could file a claim for compensation if the 

work-related condition caused her to lose time from work. 

The record reflects that on and after April 19, 2012 appellant filed CA-7 claim forms for 

wage loss for certain claimed periods from March 14 to October 19, 2012. 

In an August 3, 2012 report, Dr. Serge Obukhoff, a Board-certified neurosurgeon, noted 

appellant’s history and described her work duties. He diagnosed thoracolumbar sprain and 

thoracic spondylosis. Dr. Obukhoff explained all symptoms started after a fall at work in 

September and, since that time, she had lower back pain. An August 14, 2012 lumbar magnetic 

resonance imaging (MRI) scan showed a normal lumbar curve associated with disc desiccation 

and thinning at L4 through S1 without evidence of spondylosis or spondylolisthesis; and facet 

arthrosis and a 0.5 centimeter broad-based protrusion at L4-L5 with mild disc edema. 

On September 5, 2012 OWCP referred appellant to Dr. Steven M. Ma, a Board-certified 

orthopedic surgeon, for a second medical opinion regarding whether her diagnosed conditions 

were employment related and if she had work-related disability. In a September 19, 2012 report, 

Dr. Ma described appellant’s history and examined her. He advised that her accepted thoracic 

and lumbar sprains had resolved. Dr. Ma noted no abnormal objective findings with regard to 

these conditions. He noted that appellant stopped work on March 14, 2012 because the 

employing establishment was unable to accommodate her restrictions. Dr. Ma advised that the 

restrictions were due to degenerative spinal conditions which were not work-related conditions. 

In an October 24, 2012 decision, OWCP denied appellant’s claim for wage-loss 

compensation and her claim that her degenerative lumbar spine condition was work related. 

In a November 23, 2012 report, Dr. Obukhoff noted that appellant returned with the 

results of her October MRI scan of the lumbar spine.5

 He indicated that she felt that she was 

unable to go back to work and that physical activity caused increased pain. Dr. Obukhoff related 

that when appellant “was driving her car, she was hit in an intersection by another vehicle from 

behind and the bumper was damaged. Apparently she already fixed the problem and is being 

compensated by insurance of the responsible party; however, she did not report these things to 

her primary treating physician. [Appellant] is seemingly having more pain in the lower back 

since the accident. It occurred about two days prior to the last MRI scan.” Dr. Obukhoff 

indicated that most of her trouble was with “lower back pain with leg radiation, although 

                                                             5

 An October 24, 2012 MRI scan of the lumbar spine revealed: a 0.5 to 1 millimeter eccentric bulge of annulus to 

the right and left of midline at L5-S1 minimally narrowing the neural foramina; a one- to two-millimeter broadbased disc protrusion present at L4-L5 associated with congenitally shortened pedicles, facet arthropathy bilaterally, 

and evidence for bilateral neural foraminal stenoses (and moderate central spinal stenoses at this level); minimal 

facet effusion on the left side at L3-L4 level; no acute fracture or unstable injury; desiccation of the discs at L4 

through S1 without evidence for spondylolysis or spondylolisthesis; a three- to four-millimeter hemangioma of the 

superior medullary bone of L1 noted as a T1 signal hyperintensity and normal variation and no acute fracture. 
4

radiculopathy symptoms are not as severe.” He diagnosed lumbar spondylolisthesis and lumbar 

disc degeneration. 

Appellant requested reconsideration and submitted a January 9, 2013 report from 

Dr. Mittleman who disagreed with Dr. Ma that appellant’s work restrictions were based upon 

degenerative conditions that were not accepted. Dr. Mittleman explained that the work 

restrictions were based upon the thoracic sprain/strain and the lumbar degenerative joint disease. 

He noted that there was only one degenerative condition in his report, lumbar facet arthropathy. 

Dr. Mittleman opined that the aggravation/acceleration of lumbar facet arthropathy was 

secondary to appellant’s work activities. He further noted that he was unaware that the 

aggravation of lumbar facet arthropathy was not accepted and would have requested that it be 

accepted. Dr. Mittleman also believed that aggravation/acceleration of arthropathy should also 

be accepted. He noted that there were abnormal findings and appellant had residual range of 

motion limitation. Dr. Mittleman opined that appellant’s work activities were aggravating and 

accelerating degenerative changes in her lumbar spine. 

By decision dated April 11, 2013, OWCP denied modification of the prior decision.6

 The 

decision found that appellant’s degenerative conditions were not due to her employment. 

Appellant requested reconsideration on April 30, 2013. In a letter dated April 18, 2013, 

Dr. Mittleman noted his disagreement with OWCP’s decision. 

On August 6, 2013 OWCP referred appellant along with a statement of accepted facts, 

and the medical record to Dr. Anthony F. Fenison, a Board-certified orthopedic surgeon, for an 

impartial medical evaluation to resolve the conflict in opinion between Dr. Ma, the second 

opinion physician, who opined that appellant had a thoracic and lumbar strain which had 

resolved and that her arthritis was not work related, and Dr. Mittleman, the attending physician, 

who found that the accepted conditions remained symptomatic, and that her degenerative spine 

conditions were accelerated by her work and caused partial disability. 

In a September 18, 2013 report, Dr. Fenison noted appellant’s history of injury and 

treatment. On lumbosacral spine examination, the pelvis was level; there was no loss of the 

normal lumbar lordosis, there was no tenderness about the paralumbar musculature; and there 

were no muscle spasms. Gait was normal and sensation was intact. Dr. Fenison diagnosed 

chronic lumbar spine myofascitis superimposed upon degenerative disc and joint disease, and a 

hemangioma in L1 and C1. He explained that appellant had a slip and fall injury in 

September 2011 and received intermittent medical care for the last few years. Dr. Fenison stated 

that she currently had no subjective complaints and her physical examination was normal. He 

indicated that appellant had no residuals and no objective evidence as to why she could not 

return to her usual duties. Dr. Fenison explained that she did not require acute orthopedic 

intervention as her condition was totally stabilized. He determined that appellant had age-related 

degenerative changes based on MRI scan findings and opined that, in the absence of any 

significant or other orthopedic pathology, her “injury should have been treated and stabilized 

within approximately three months.” 

                                                             6

 On March 31, 2013 appellant retired. 
5

In an attached addendum, Dr. Fenison noted that the initial diagnoses of thoracic and 

lumbar spine sprain/strain were appropriate. He opined that appellant’s soft tissue injuries 

resolved without residuals and that he did not believe that the arthritic components were caused 

or aggravated by the September 2011 work incident. A December 2011 MRI scan showed lower 

lumbar degenerative changes that were unchanged from an MRI scan that was done earlier in 

2011. Dr. Fenison determined that this evidence suggested that the multilevel degenerative disc 

and joint disease was present prior to the September 2011 incident. He stated that there were no 

other work-related conditions. Dr. Fenison noted that appellant had a slip and fall injury that 

obviously caused her to strain her core musculature while attempting to keep herself from falling 

and that this was the most direct reason for the soft tissue injury to the thoracolumbar paraspinal 

musculature. 

Dr. Fenison opined that it was “quite possible that the mechanism of injury might have 

caused a flare up of the preexisting degenerative disc and joint disease, but that temporary flare 

up should have resolved within approximately 6 to 12 weeks and therefore I would say that by 

the time the patient had the MRI scan on January 11, 2012 that the arthritic component that was 

previously documented should have returned back to its baseline level.” He reiterated that 

appellant needed no additional treatment, that her symptoms were completely resolved, and that 

she did not require any work restrictions. Dr. Fenison opined that “[i]f she had not retired in 

January 2013, it would be my opinion that she could return back to work performing her full and 

normal duties without any work restrictions.” 

In a November 1, 2013 decision, OWCP denied modification of the prior decision. It 

found that the report of Dr. Fenison, resolved the conflict and established that all of appellant’s 

accepted conditions had resolved and that she did not have a permanent aggravation of her 

underlying degenerative condition. Also on November 1, 2013 OWCP proposed to terminate 

appellant’s compensation benefits as the weight of the evidence, based upon the report of 

Dr. Fenison, established that the accepted work-related conditions and any disability from work 

had ceased. Appellant was given 30 days to submit additional evidence or argument. 

OWCP received a November 21, 2013 report from Dr. Mittleman, who advised that 

appellant could work modified duty. Appellant resubmitted various earlier medical reports. 

On January 14, 2014 appellant requested reconsideration. On January 16, 2014 

appellant’s representative also requested reconsideration. He argued that the decision was based 

on an erroneous medical report and that she never received back pay from March 1, 2012 until 

she retired. Appellant’s representative also argued that Dr. Fenison agreed that appellant had a 

temporary exacerbation. 

By decision dated January 24, 2014, OWCP terminated appellant’s compensation 

benefits effective that date on the grounds that she had no continuing residuals of her work 

injury. 

On January 27, 2014 appellant requested reconsideration. On March 26, 2014 OWCP 

also received a letter dated December 10, 2013 from appellant’s representative which requested 

reconsideration. Appellant’s representative argued that the decision was erroneous because she 

was not requesting continued benefits or reinstatement of benefits, but rather, she was requesting 
6

reimbursement of lost wages she never received beginning March 12, 2012. OWCP received a 

copy of the January 9, 2013 report from Dr. Mittleman. 

By decision dated April 17, 2014, OWCP denied appellant’s request for reconsideration 

finding that the evidence submitted was insufficient to warrant review of its prior decision. 

LEGAL PRECEDENT -- ISSUE 1 

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

modification or termination of benefits.7

 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.8

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

of entitlement to compensation for disability.9

 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.10

Section 8123(a) of FECA provides, in pertinent part: “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.”11 Where 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.12

ANALYSIS 

 OWCP accepted that appellant sustained thoracic and lumbar strains. After appellant 

claimed wage-loss compensation and a worsening condition, it referred her to Dr. Ma who 

determined that the accepted conditions had resolved and that her degenerative conditions were 

not employment related. OWCP then determined that a conflict of medical opinion existed 

between Dr. Ma and Dr. Mittleman, the treating physician, who indicated that the accepted 

conditions had not resolved and found that the degenerative spine conditions were accelerated by 

work factors and should be accepted. Therefore, it referred appellant to Dr. Fenison, a Boardcertified orthopedic surgeon, for an impartial medical examination to resolve the conflict. 

                                                             7 Curtis Hall, 45 ECAB 316 (1994). 

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

9 Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981). 

10 Calvin S. Mays, 39 ECAB 993 (1988). 

11 5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan, 45 

ECAB 207, 210 (1993). 

12 See Roger Dingess, 47 ECAB 123, 126 (1995); Juanita H. Christoph, 40 ECAB 354, 360 (1988); Nathaniel 

Milton, 37 ECAB 712, 723-24 (1986). 
7

In his September 18, 2013 report, Dr. Fenison noted appellant’s history, reviewed the 

medical record and examined her. He advised that she had no subjective complaints and her 

physical examination was normal. Dr. Fenison diagnosed chronic lumbar spine myofascitis 

superimposed upon degenerative disc and joint disease and a hemangioma in L1 and C1. He 

indicated that appellant had no residuals of the accepted conditions and there was no objective 

evidence as to why she could not return to her usual duties. Dr. Fenison determined that she had 

age-related degenerative changes that were noted on MRI scan and, in the absence of any other 

significant pathology, her condition should have “stabilized within approximately three months.” 

He explained that appellant’s soft tissue injuries resolved without residuals and that he did not 

find that the arthritic components were related to the work incident, citing MRI scans from 2011 

to support his opinion. Dr. Fenison determined that this evidence suggested that the multilevel 

degenerative disc and joint disease were present prior to the September 2011 incident and there 

was no reason to suggest that her usual work activities exacerbated the age-related degenerative 

changes. He explained that there were no other conditions related to the work injury. 

Dr. Fenison concluded that appellant had a slip and fall injury that caused her to strain her core 

musculature which resulted in a soft tissue injury to the thoracolumbar paraspinal musculature. 

He opined that it was “quite possible that the mechanism of injury might have caused a flare up 

of the preexisting degenerative disc and joint disease” but any temporary flare up should have 

resolved within about 6 to 12 weeks. Dr. Fenison opined, based on MRI scan findings, that the 

arthritic component that was previously documented should have returned back to its baseline 

level. He opined that no additional treatment was needed, her symptoms were completely 

resolved, and that she did not require any work restrictions. 

The Board finds that Dr. Fenison’s opinion is entitled to special weight as his report is 

sufficiently well rationalized and based upon a proper factual background. OWCP properly 

relied upon his reports in finding that appellant’s employment-related condition had resolved. 

Dr. Fenison also found no basis on which to attribute her degenerative spine condition to her 

employment.13 He examined appellant, reviewed her medical records, and reported an accurate 

history. Because appellant no longer has residuals or disability related to her accepted 

employment condition, the Board finds that OWCP met its burden of proof to terminate 

compensation benefits. 

Subsequent to the notice proposing to terminate appellant’s benefits, OWCP received a 

November 21, 2013 report from Dr. Mittleman, who advised that appellant could work modified 

duty. The Board notes that Dr. Mittleman had been on one side of the conflict in the medical 

opinion that the impartial specialist resolved, and his report is insufficient to overcome the 

special weight accorded the impartial specialist or to create a new medical conflict.14

 The Board finds that, at the time OWCP terminated benefits, the weight of the medical 

evidence rested with Dr. Fenison, who submitted a thorough medical opinion based upon a 

complete and accurate factual and medical history. Dr. Fenison performed a complete 

                                                             13 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). 

14 Barbara J. Warren, 51 ECAB 413 (2000); Alice J. Tysinger, 51 ECAB 638 (2000). 
8

examination, reviewed the record and advised that appellant had no continued disability from her 

accepted employment injuries and that she was capable of performing her usual employment and 

that further medical treatment was unnecessary. 

The Board finds that Dr. Fenison’s report established that appellant ceased to have any 

disability or condition causally related to her employment injuries, thereby justifying OWCP’s 

January 24, 2014 termination of compensation benefits. 

Appellant may submit evidence or argument with a written request for reconsideration 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Under section 8128(a) of FECA,15 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal 

regulations, which provide that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence that: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”16

 Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.17

ANALYSIS -- ISSUE 2 

Appellant disagreed with the January 24, 2014 decision and timely requested 

reconsideration on January 27, 2014. On March 26, 2014 OWCP also received appellant’s 

representative’s December 10, 2013 request for reconsideration. The underlying issue on 

reconsideration is medical in nature, whether OWCP properly terminated appellant’s 

compensation and medical benefits effective January 24, 2014. 

Appellant’s representative argued that the decision was erroneous because she was not 

requesting continued benefits or reinstatement of benefits, but rather, she was requesting 

                                                             15 5 U.S.C. § 8128(a). 

16 20 C.F.R. § 10.606(b). 

17 Id. at § 10.608(b). 
9

reimbursement of lost wages she never received for the period March 12, 2012 until she retired. 

The Board notes that reimbursement of wage loss was not the issue in the January 24, 2014 

decision. The Board has held that the submission of evidence which does not address the 

particular issue involved does not constitute a basis for reopening a case.18 Appellant also did 

not submit new medical evidence on reconsideration. Although she submitted Dr. Mittleman’s 

January 9, 2013 report, this report is not new and relevant as it was previously of record.19 

Appellant therefore did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP or submit 

new and relevant evidence not previously considered. As she did not meet any of the necessary 

regulatory requirements, she is not entitled to further merit review. 

On appeal, appellant’s representative argued that appellant was not requesting a claim for 

degenerative disease but that she was requesting compensation for back pay. The Board notes 

that the issue of wage loss for the closed period of time related to the CA-7 claims for disability 

has not been addressed by OWCP subsequent to its October 24, 2012 decision, even though 

appellant sought reconsideration of this matter. Upon return of the case, OWCP should issue a 

formal decision related to the claims for wage loss prior to the termination of benefits. 

Appellant’s representative also argued that Dr. Mittleman reviewed Dr. Fenison’s 

September 18, 2013 report, and noted that he had examined appellant six months after her dorsal 

tissue became asymptomatic. He argued that this was not the correct sequence to examine a 

patient after she healed. Appellant’s representative also indicated that appellant had retired on 

January 31, 2013. The Board notes that Dr. Fenison provided results on examination and found 

appellant had no residuals of her work-related condition. As the impartial medical examiner, 

Dr. Fenison was afforded the weight of the medical evidence and the Board has affirmed his 

findings. 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s compensation and medical 

benefits effective January 24, 2014. The Board also finds that OWCP properly refused to reopen 

appellant’s case for further review of the merits of her claim under 5 U.S.C. § 8128(a). 

                                                             18 Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000). 

19 James W. Scott, 55 ECAB 606 (2004) (evidence that repeats or duplicates evidence already in the case record 

has no evidentiary value and does not constitute a basis for reopening a case). 
10

ORDER 

IT IS HEREBY ORDERED THAT the April 17 and January 24, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: May 22, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board