United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Blackwood, NJ, Employer

__________________________________________

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Docket No. 17-0457

Issued: April 13, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 22, 2016 appellant, through counsel, filed a timely appeal from a July 25, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider the merits of this case.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective December 13, 2015; and (2) whether appellant 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

met her burden of proof to establish any continuing disability and residuals on and after 

December 13, 2015 causally related to the accepted February 2, 2009 employment injury.

On appeal counsel argues that OWCP failed to meet its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits.

FACTUAL HISTORY

On February 3, 2009 appellant, then a 53-year-old window distribution clerk, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained injuries when a shelf fell on her 

face and left arm while she was unloading a divided automated passport control (APC) machine

on February 2, 2009. She stopped work the next day on February 3, 2009 and returned on 

February 9, 2009. OWCP accepted the claim for postconcussion syndrome, post-traumatic stress 

disorder, as well as left upper arm and face contusion. 

Appellant filed a recurrence of disability (Form CA-2a) on November 5, 2009. OWCP 

accepted her recurrence claim on January 27, 2010. Appellant received compensation benefits on 

the periodic rolls for temporary total disability as of January 17, 2010.

OWCP continued to receive progress notes and reports from Dr. Leon I. Rosenburg, a 

treating Board-certified psychiatrist, concerning appellant’s psychiatric status, treatment, and 

continued disability from work.

On February 10, 2011 OWCP referred appellant to Dr. Mary Ann Kezmarsky, a licensed 

psychologist, to determine appellant’s disability status. In a report dated February 28, 2011,

Dr. Kezmarsky related that she diagnosed postconcussive disorder and major depression, with 

occasional psychotic features. She related that appellant did not have post-traumatic stress 

disorder. However, Dr. Kezmarsky noted that there was a direct relationship between appellant’s 

accepted work injury and her diagnosed conditions. She related that appellant was currently 

disabled and needed neuropsychological/cognitive treatment. Dr. Kezmarsky evaluated appellant 

again on June 2, 2011 and again related that appellant remained totally disabled, but could be 

helped by a course of cognitive rehabilitation. In a report dated January 2, 2012, she related that 

while appellant had shown mild improvement she still had significant difficulty with working 

memory, visual memory, severe retroactive interference in recall, and difficulty with divided 

attention. Dr. Kezmarsky again strongly recommended neuropsychological treatment. 

In a report dated July 2, 2014, Dr. Rosenberg related that appellant was no longer 

psychotic. Appellant no longer had flight of ideas and her speech was free-flowing and 

spontaneous. Dr. Rosenberg further noted that appellant’s judgment, insight, memory, attention,

and concentration were good. However, he also noted that she still had depression and anxiety. 

On March 3, 2015 OWCP referred appellant to Dr. Richard Cohen, a Board-certified 

psychiatrist, for a second opinion evaluation regarding appellant’s psychiatric status and ability to 

work. In a March 17, 2015 report, Dr. Cohen reviewed the statement of accepted facts (SOAF) as 

well as the medical record. He conducted a psychiatric examination and noted that appellant’s 

major depressive disorder was improving and that she was no longer psychotic. A review of 

appellant’s mental status revealed no hallucinations, paranoid ideations, no thought disorder, and 
3

mild concentration impairment. Dr. Cohen observed an anxious and depressed mood, which was 

improving. He opined that appellant no longer had post-traumatic stress disorder. Based on his 

evaluation, Dr. Cohen observed mild impairments in concentration, social functioning, and daily 

living activities. He found that appellant’s depression was no longer disabling and she could return 

to her date-of-injury job from a psychiatric standpoint. Dr. Cohen opined that appellant had no 

psychiatric limitations precluding her from work. In an attached work capacity evaluation 

psychiatric/psychological conditions form (Form OWCP-5a), he checked “yes” to the question of 

whether appellant was competent to perform her usual job.

On April 1, 2015 OWCP referred appellant to Dr. Melvin Vigman, a Board-certified 

neurologist, for a second opinion evaluation of her neurological condition, treatment, and ability 

to work. Dr. Vigman, in an April 20, 2015 report, opined that appellant had no neurological 

condition. In reaching this conclusion, he detailed the medical records he reviewed and provided

his own examination findings. Dr. Vigman opined that appellant’s headaches following her injury 

did not support a diagnosis of concussion and she did not have symptoms of postconcussion

syndrome. Based on the examination findings, he concluded that appellant was neurologically 

sound and capable of working her date-of-injury job with no restrictions. Dr. Vigman opined that 

appellant did not suffer a concussion from the accepted employment injury as she had no loss of 

consciousness or any impairment of her consciousness. In an attached work capacity evaluation 

(Form OWCP-5c), he indicated that appellant was capable of working an eight-hour day with no 

restrictions. 

On June 8, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits as she no longer had any residuals or disability due to her 

accepted conditions. It found the weight of the medical opinion evidence rested with the opinions 

of Drs. Cohen and Vigman, who both opined that appellant was capable of working with no 

restrictions. Dr. Vigman determined that appellant had no neurological deficits while Dr. Cohen

opined that appellant’s post-traumatic stress disorder had resolved.

By letter dated July 1, 2015, counsel disagreed with the proposal to terminate appellant’s

wage-loss benefits. He requested that appellant’s claim be expanded to include the condition of 

major depressive disorder based on Dr. Cohen’s report diagnosing this condition. In addition, 

counsel contended that Dr. Cohen’s report was insufficient to terminate wage-loss compensation 

as he failed to demonstrate any knowledge of appellant’s date-of-injury job duties. 

On July 13, 2015 OWCP received a June 23, 2015 progress report from Dr. Rosenberg 

diagnosing depression and anxiety. Appellant’s examination revealed she was not psychotic, her 

thought process was not circumstantial or tangential, no flight of ideas, normal language, average 

fund of knowledge, flat affect, and fair judgement, insight, memory, attention, and concentration. 

In a July 22, 2015 report, Dr. Rosenberg reviewed the reports from Drs. Cohen and Vigman 

and noted his disagreement that appellant was capable of working. He detailed his disagreement 

with Dr. Cohen’s report, examination, and conclusions. Dr. Rosenberg reported that while 

appellant’s condition was improving due to her medication and treatment, she continued to be 

disabled from work due to residual impairment from her accepted employment injuries. He noted

that the neuropsychological testing performed by Dr. Kezmarsky noted impairment due to 

appellant’s accepted postconcussion syndrome. Dr. Rosenberg related that no repeat 
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neuropsychological testing had been performed and there was no evidence that impairment due to 

postconcussion syndrome was not still evident. He subsequently submitted progress notes 

detailing appellant’s ongoing treatment and condition.

In a December 1, 2015 attending physicians report (Form CA-20), Dr. Rosenberg 

diagnosed anxiety, confusion, and depression and noted an injury date of February 2, 2009. He 

opined that appellant remained totally disabled from any type of work. 

Dr. Rosenberg also submitted a December 1, 2016 Form OWCP-5c indicating that 

appellant was unable to work due to her depression and anxiety.

A December 1, 2015 report from Dr. Rosenberg was duplicative of his July 22, 2015 

report.

By decision dated December10, 2015, OWCP finalized the termination of appellant’s 

wage-loss compensation and medical benefits effective December 13, 2015. It determined that the 

weight of the medical opinion evidence rested with the opinions of Drs. Cohen and Vigman and 

that appellant no longer had residuals or disability due to her accepted employment injuries. 

In a letter dated December 17, 2015, counsel requested an oral hearing before an OWCP 

hearing representative, which was held on April 25, 2016. 

In an April 18, 2016 report, Dr. Rosenberg related that to determine whether appellant had 

residual impairment from postconcussion syndrome, he asked her the name of the street on which 

his office was located. He noted that appellant had been coming to his office for the past seven 

years, since she was injured. Appellant incorrectly identified the street. Dr. Rosenberg explained 

that appellant remained unable to be a postal distribution clerk as knowing streets was the bread 

and butter of postal distribution. He also noted appellant’s ability to work with numbers was 

impaired due to her postconcussion syndrome. 

By decision dated July 25, 2016, OWCP’s hearing representative affirmed the termination 

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

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.3 After it has determined that an employee 

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

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

the employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized 

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

 

3 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).
5

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

entitlement for disability.6 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.7

ANALYSIS -- ISSUE 1

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

compensation and medical benefits effective December 13, 2015. 

OWCP accepted appellant’s claim for left upper arm and face contusion, postconcussion

syndrome, and post-traumatic stress disorder. As of December 10, 2015 it terminated wage-loss 

compensation and medical benefits effective December 13, 2015. OWCP found that the weight 

of the medical evidence was represented by the opinions of Dr. Cohen and Vigman. An OWCP 

hearing representative affirmed the termination by decision dated July 25, 2016.

The Board notes that there was no medical evidence of record that appellant still had 

residuals of the accepted conditions of left upper arm and face contusion. OWCP therefore met 

its burden of proof to terminate wage-loss compensation and medical benefits based upon these 

conditions.8 

Regarding appellant’s accepted postconcussion syndrome, OWCP referred appellant to

Dr. Vigman to determine whether appellant continued to have residuals of this neurologic 

condition. In his April 20, 2015 report, Dr. Vigman explained that appellant did not experience a 

loss of consciousness when the injury occurred. He questioned whether appellant had sustained a 

concussion on the date of injury, based upon her medical records, and he further noted that 

appellant’s current physical examination findings established that appellant was neurologically 

sound and had no work restrictions related to this diagnosis. With respect to whether appellant 

continued to have residuals from any neurological condition causally related to the work injury, 

OWCP gave determinative weight to the medical opinion of Dr. Vigman, who reviewed the entire 

record and SOAF and performed a thorough examination of appellant. Dr. Vigman opined that 

there were no objective medical findings to support residuals of postconcussion syndrome. The 

Board finds that OWCP properly found that his opinion represented the weight of the medical 

evidence as he submitted a well-rationalized report which found that appellant had no current 

residuals or disability stemming from her accepted concussion condition. His opinion is 

sufficiently probative, rationalized, and based on a proper factual background.9

Dr. Cohen, in his March 17, 2015 report, assessed appellant’s mental status. He opined 

that she did not suffer from post-traumatic stress disorder as she no longer had any flashbacks or 

nightmares. Dr. Cohen observed mild impairments in social function, concentration, and daily 

 

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

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

8 Supra notes 4 and 7. 

9 See R.G., Docket No. 08-0803 (issued December 9, 2008).
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living. He opined that appellant could return to work. The Board finds that Dr. Cohen’s reports 

represented the weight of the medical evidence at the time OWCP terminated benefits for her posttraumatic stress syndrome and that OWCP properly relied on his opinion in terminating appellant’s 

compensation benefits.

Dr. Cohen had full knowledge of the relevant facts and the course of appellant’s condition. 

His opinion was based on a proper factual and medical history and on the SOAF. Dr. Cohen’s 

report 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 At the time benefits were terminated, Dr. Cohen explained that appellant no longer 

had post-traumatic stress disorder and that she was capable of returning to work. His March 17, 

2015 report is both probative and reliable evidence regarding appellant’s current psychiatric 

condition.12 Accordingly, the Board finds that Dr. Cohen’s opinion constitutes the weight of the 

medical evidence and is sufficient to justify OWCP’s termination of wage-loss compensation for 

the accepted post-traumatic stress disorder.

In multiple reports, including his July 22, 2015 report, Dr. Rosenberg disagreed with 

Dr. Cohen’s examination findings and conclusions. He contended that appellant continued to have 

residuals and disability. Dr. Rosenberg noted that appellant was only able to function because of 

her medication. He opined that appellant continued to suffer from the accepted postconcussive 

syndrome. However, Dr. Rosenberg did not provide sufficient objective findings and medical 

rationale explaining why appellant continued to be disabled from work due to the accepted 

postconcussive syndrome. Thus, his reports are of diminished probative value and insufficient to 

overcome the weight of Dr. Cohen’s report or to create a medical conflict.13

While Dr. Rosenberg also diagnosed anxiety and depression in numerous reports and 

related that appellant was disabled due to these conditions, the Board notes that these conditions 

have not been accepted as causally related to appellant’s February 2, 2009 injury. For conditions 

not accepted by OWCP as being employment related, it is the employee’s burden of proof to 

provide rationalized medical evidence sufficient to establish causal relation. Dr. Rosenberg 

however offered no rationalized medical opinion causally relating this diagnosis to the accepted 

injury.

14

 

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

11 See 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 Supra note 9.

13 See S.S., Docket No. 15-1160 (issued January 11, 2016). The weight of medical evidence is determined by its 

reliability, its probative value, its convincing quality, the care of analysis manifested, and the medical rationale 

expressed in support of the physician’s opinion. James Mack, 43 ECAB 321 (1991).

14 See Alice J. Tysinger, 51 ECAB 638 (2000); see also E.H., Docket No. 17-1402 (issued November 8, 2017).
7

Counsel contends that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits as the opinions of both Dr. Vigman and Dr. Cohen 

were insufficiently rationalized. As discussed above, the Board found the opinions of both 

physicians well rationalized and sufficient to meet OWCP’s burden of proof to terminate 

appellant’s compensation benefits.

LEGAL PRECEDENT -- ISSUE 2

As OWCP met its burden of proof to terminate appellant’s wage-loss compensation and 

medical benefits, the burden shifted to her to establish that she had any disability or residuals

causally related to her accepted injury.15 

ANALYSIS -- ISSUE 2

The Board further finds that appellant has not establish any continuing disability or 

residuals on and after December 13, 2015 causally related to the accepted February 2, 2009 

employment injury.

Following the termination of benefits on December 10, 2015 and prior to OWCP’s hearing 

representative’s decision affirming the termination on July 25, 2016, appellant submitted 

additional medical evidence in support of her claim that she continued to have residuals and 

disability due to her accepted postconcussion syndrome. Given that the Board has found that 

OWCP properly relied on the opinions of Dr. Cohen and Dr. Vigman, OWCP referral physicians, 

in terminating appellant’s compensation effective December 13, 2015, the burden shifted to 

appellant to establish continuing disability. The Board has reviewed the additional evidence 

submitted by appellant and finds that it is of insufficient probative value to establish that she had 

residuals of her accepted postconcussion syndrome on or after December 13, 2015.

In Dr. Rosenberg’s April 18, 2016 report he opined that appellant continued to suffer from 

her postconcussion syndrome because she incorrectly identified the street name where his office 

was located. The Board finds that his opinion is of limited probative value because he did not 

provide medical rationale in support of his opinion on continuing work-related residuals. 

Dr. Rosenberg’s opinion is conclusory in nature and does not adequately explain how her inability 

to identify his office’s street name supported his opinion.16 As explained above, the medical 

evidence does not show that appellant’s has a continuing postconcussion syndrome, a condition 

which Dr. Rosenberg posited still contributes to a work-related emotional condition.

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.

 

15 See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

16 See J.D., Docket No. 14-2016 (issued February 27, 2015); T.M., Docket No. 08-0975 (issued February 6, 2009); 

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); William C. Thomas, 45 ECAB 591 (1994) (a medical report is 

of limited probative value on the issue of causal relationship if it contains a conclusion regarding causal relationship 

which is unsupported by medical rationale).
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CONCLUSION

The Board finds that OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits. The Board further finds that appellant has not met her burden of proof to 

establish any continuing disability or residuals on and after December 13, 2015 causally related to 

the accepted February 2, 2009 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated July 25, 2016 is affirmed.

17

Issued: April 13, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

17 Colleen Duffy Kiko Judge, participated in the preparation of this decision but was no longer a member of the 

Board effective December 11, 2017.