United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Ana, CA, Employer 

__________________________________________ 

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Docket No. 16-1471 

Issued: August 18, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 7, 2016 appellant filed a timely appeal from an April 25, 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. 

ISSUE 

The issue is whether OWCP properly terminated appellant’s compensation benefits 

effective January 27, 2015 as her accepted employment-related neck sprain had resolved without 

residuals. 

On appeal appellant contends that she and her doctors disagree with OWCP’s referral 

physician, and that the correct diagnosed conditions were not accepted. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On July 22, 2013 appellant, then a 51-year-old automated mark-up clerk, filed an 

occupational disease claim (Form CA-2), alleging that she developed neck, hand, and wrist 

conditions due to repetitive motions at work. She indicated that she first became aware of her 

condition on April 13, 2013 and first realized it was caused or aggravated by her employment on 

May 8, 2013. Appellant stated that her federal duties included repetitive motions, twisting and 

turning her neck, and typing on a keyboard. She did not stop work. 

In a July 19, 2013 report, Dr. Edward Mittleman, a family practitioner, diagnosed 

cervical disc herniation, cervical spondylosis with myelopathy, Guyon’s canal syndrome, and 

carpal tunnel syndrome. He opined that appellant’s conditions were causally related to her 

federal employment and requested carpal tunnel release surgery. Dr. Mittleman advised that 

appellant was capable of working part-time, limited duty with the following restrictions: no 

lifting or carrying more than 5 pounds continuously and 15 pounds intermittently; bending, 

twisting, pushing, and pulling intermittently for one hour; and simple grasping/fine manipulation 

intermittently for four hours. 

By decision dated September 25, 2013, OWCP accepted the claim for neck sprain. 

Appellant began filing claims for disability (Form CA-7) beginning September 25 to 

November 8, 2013 and continuing. 

On September 27, 2013 OWCP referred appellant to Dr. Steven Ma, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her 

employment-related condition. 

In his October 17, 2013 report, Dr. Ma reviewed a statement of accepted facts (SOAF), 

history of the injury, and the medical evidence of record.2

 He conducted a physical examination 

and found no asymmetry, no scars, and no spasm. Dr. Ma found no tenderness to palpation. 

Appellant pointed to the paracervical area down to both trapeziuses as the location of her 

symptoms. She was unable to bring her chin to her chest or to her left and right shoulders. 

Range of motion of the neck was limited. X-rays of the cervical spine showed no fractures or 

dislocations. A May 10, 2013 magnetic resonance imaging (MRI) scan report revealed cervical 

hypolordosis and thinning on the disc throughout the cervical spine. There was moderate 

desiccation of the disc at C3-6 with significant central spinal stenosis at C3-4. There was 

moderate-to-advanced disc space thinning at C3-4 with a three to four millimeter (mm) broadbased disc protrusion and joint hypertrophy bilaterally at C3-4. There was minimal apophyseal 

joint effusion seen at C3-4 and C4-5, indicating post-traumatic inflammatory and reparative 

change. There was a 1.5 mm broad-based disc protrusion at C4-5 and some minimal reactive 

endplate edema at C3-4 involving the posterior endplates. 

                                                             2

 The SOAF indicated that appellant was working as an automation clerk and on July 22, 2013 she filed an 

occupational disease claim alleging that she developed a neck and bilateral hand condition after working as a mail 

processing clerk during the period 1998 to 2009 and as a mark-up clerk from 2009 to present date. The SOAF 

further indicated that OWCP accepted the claim for neck sprain. 
3

Dr. Ma concluded that appellant’s accepted neck sprain had resolved completely and 

currently suffered from a cervical herniated disc causing a cervical radiculitis/radiculopathy. He 

opined that appellant’s condition was not employment related on the basis that it was a 

preexisting condition and would not be caused by her usual customary work duties. Dr. Ma also 

noted that appellant’s bilateral carpal tunnel syndrome was not work related. He advised that 

appellant had no physical limitations from any work-related condition and released her to work 

with temporary restrictions for her nonemployment-related conditions. 

In a July 26, 2013 report, Dr. Serge Obukhoff, a Board-certified neurosurgeon, diagnosed 

cervical spondylosis and myelopathy and opined that appellant’s conditions were causally related 

to repetitive lifting at work. He asserted that there was a definitive relationship between the 

repetitive activities appellant performed during the course of her federal employment and her 

severe advanced cervical spondylosis with cord compression. In order to treat appellant’s 

cervical conditions, Dr. Obukhoff requested authorization for a C3-5 partial corpectomy with 

discectomy and decompression of the spinal cord followed by fusion. 

Appellant submitted reports dated January 10 through July 16, 2014 from Dr. Mittleman 

who diagnosed cervical disc herniations, cervical spondylosis with myelopathy, bilateral carpal 

tunnel syndrome, right Guyon’s canal syndrome by nerve conduction velocity, and sprain of 

neck. Dr. Mittleman asserted that appellant continued to suffer from neck pain and bilateral 

hand and wrist pain. 

OWCP found a conflict in the medical evidence and referred appellant to Dr. Mark J. 

Legome, a Board-certified orthopedic surgeon, for an impartial medical examination to resolve 

the conflict in medical opinion between Drs. Ma and Mittleman on the issue of whether she 

continued to have any disability or residuals as a result of the accepted employment condition. 

In a report dated June 3, 2014, Dr. Legome reviewed the SOAF, appellant’s history of the 

injury, and the medical evidence of record. He conducted a physical examination and found that 

appellant barely moved the cervical spine five degrees in any direction and when asked to do so 

she expressed extreme fear and apprehension. Dr. Legome noted that foraminal compression test 

could not be carried out since appellant would not move her neck in any direction. He found no 

evidence of carpal tunnel syndrome and concluded that the relationship of appellant’s present 

cervical symptoms to her work-related injury was undetermined. 

Appellant continued to file claims for compensation (Form CA-7s) for intermittent 

periods commencing April 15, 2013. 

In an August 5, 2014 report, Dr. Legome asserted that there were “huge gaps in the 

records” and he had reported to OWCP that, during the course of his review of appellant’s 

medical records, there were many questions that arose and needed to be answered before he 

could generate an appropriate, logical, reasonable, and accurate medical report. 

In a report dated August 15, 2014, Dr. Legome opined that the first inkling of appellant’s 

cervical symptoms may have been in 2005 and likely continued to progress thereafter. He 

explained that Dr. Ma opined that appellant’s bilateral carpal tunnel syndrome was not work 

related because it was incidentally found by diagnostic studies. Dr. Ma further indicated that 
4

there was no aggravation of a preexisting condition due to appellant’s federal duties. 

Dr. Legome found that a computerized tomography (CT) scan dated April 4, 2013, which 

predated the date of injury, demonstrated that appellant had extensive disc degeneration at every 

single level of her cervical spine, from C2 all the way through C6-7, enlarged facets from C2-6, 

and uncovertebral joint hypertrophy bilaterally from C3 through C7-T1. There were also broadbased disc bulges from C2 to C5-6. Dr. Legome determined that, based on her medical history, 

appellant was genetically predisposed to develop cervical conditions and opined that appellant’s 

diagnosed conditions were not work related. He found that appellant’s disc bulges, disc 

degeneration, facet hypertrophy, and uncovertebral hypertrophy were directly related to a genetic 

predisposition and her spinal stenosis in the cervical canal was a congenital condition, which was 

determined by her genes and not her work activities. Dr. Legome concluded that appellant did 

not sustain an employment-related neck sprain and her diagnosed conditions “would have been 

exactly the same if she was never employed.” 

In an August 28, 2014 report, Dr. Mittleman indicated that he had reviewed 

Dr. Legome’s opinion and found that his reports were “markedly incomplete.” He opined that 

the reports from Dr. Legome lacked probative value to resolve the conflict in the medical 

evidence. 

By decision dated December 15, 2014, OWCP declined to expand appellant’s claim to 

include bilateral carpal tunnel syndrome and other cervical conditions. It further denied her 

claims for wage-loss compensation, commencing April 15, 2013 due to the nonwork-related 

conditions. 

In a December 15, 2014 letter, OWCP notified appellant that it proposed to terminate her 

medical benefits and wage-loss compensation as her accepted condition had resolved without 

residuals, relying on the reports from Dr. Legome. It afforded her 30 days to submit additional 

evidence or argument in disagreement with the proposed action. 

In response, appellant submitted a December 16, 2014 report from Dr. James A. Kim, a 

specialist in anesthesiology and pain medicine, who diagnosed chronic pain, disc displacement of 

the cervical spine, cervical facet arthropathy, cervical radiculopathy, and bilateral carpal tunnel 

syndrome. Dr. Kim found spinal vertebral tenderness in the cervical spine at C5-7. Range of 

motion of the cervical spine was slightly-to-moderately limited due to pain. Sensory 

examination revealed decreased sensation in the bilateral upper extremities and motor 

examination showed moderate decreased strength in the bilateral upper extremities. Spurling’s 

test was positive bilaterally. 

On January 15, 2015 appellant requested reconsideration of OWCP’s December 15, 2014 

decision denying compensation and the expansion of her claim (and submitted progress reports 

dated November 26, 2014 and January 8, 2015 from Dr. Mittleman who reiterated his diagnoses 

and opinions. 

By decision dated January 27, 2015, OWCP terminated appellant’s FECA benefits 

effective January 27, 2015. It found the special weight of the medical evidence was represented 

by the opinion of Dr. Legome. 
5

By decision dated February 12, 2015, OWCP denied modification of its December 15, 

2014 decision regarding the claim for expansion and disability resulting from the 

nonemployment-related conditions. 

On January 26, 2016 appellant requested reconsideration of OWCP’s January 27, 2015 

termination decision and submitted an October 2, 2015 report from Dr. James T. Tran, a Boardcertified neurological surgeon, who asserted that appellant continued to suffer residuals of her 

work injury and diagnosed spinal stenosis of cervical region, cervical disc displacement, and 

cervical disc degeneration. 

Appellant also submitted a January 21, 2016 report from Dr. Basimah Khulusi, a Boardcertified physiatrist, who diagnosed cervical disc herniation, cervical spondylosis with 

myelopathy, Guyon’s canal syndrome, and bilateral carpal tunnel syndrome. Dr. Khulusi opined 

that appellant’s duties resulted in acceleration of the degeneration of her neck, which aggravated 

her congenital spinal stenosis and caused her to have a more serious neck condition than she 

could have had otherwise. He further opined that appellant’s job duties also contributed to her 

development of bilateral carpal tunnel syndrome. Dr. Khulusi found that Dr. Legome’s reports 

had no probative value as they contained a number of contradictory statements and failed to 

resolve the conflict in the medical evidence. 

On February 2, 2016 appellant requested reconsideration of OWCP’s decision dated 

February 12, 2015 regarding wage-loss compensation and its refusal to expand the claim. 

By decision dated April 25, 2016, OWCP denied modification of its January 27, 2015 

termination decision. Additionally, it indicated that it had received appellant’s request for 

reconsideration of its February 12, 2015 decision and noted that a separate decision would be 

issued regarding the expansion of her claim. 

LEGAL PRECEDENT 

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

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 

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

4 See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

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

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

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

require further medical treatment.7

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.8

 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.9

ANALYSIS 

OWCP accepted appellant’s claim for neck sprain. It terminated her medical benefits and 

wage-loss compensation because the accepted employment-related condition had resolved 

without residuals based on the opinion of the impartial medical examiner, Dr. Legome. It is 

OWCP that bears the burden of proof to justify modification or termination of benefits.10 The 

Board finds that OWCP has failed to meet its burden of proof to terminate appellant’s FECA 

benefits. 

OWCP based its decision to terminate appellant’s compensation benefits on reports dated 

June 3, August 5, and 15, 2014 from Dr. Legome who conducted a physical examination and 

reviewed appellant’s medical history and SOAF. By his own admission, Dr. Legome concluded 

in his initial June 3, 2014 report that the relationship of appellant’s present cervical symptoms to 

her work-related injury was undetermined, despite the fact that OWCP had previously accepted 

the claim for a neck sprain. 

The Board finds that the SOAF stated that OWCP had accepted the claim for neck sprain. 

Nevertheless, Dr. Legome concluded that appellant had not sustained an employment-related 

neck sprain and her diagnosed conditions “would have been exactly the same if she was never 

employed.” He asserted that there were “huge gaps in the records” and he had reported to 

OWCP that, during the course of his review of appellant’s medical records, there were many 

questions that arose and needed to be answered before he could generate an appropriate, logical, 

reasonable, and accurate medical report. In his August 15, 2014 report, Dr. Legome reiterated 

that “the absence of appropriate medical records severely limit[ed] the totality of [his] report,” 

but concluded that appellant’s cervical conditions were not work-related. He discussed relevant 

diagnostic testing, but he did not adequately explain the basis for his opinions regarding 

appellant’s accepted neck sprain. 

                                                             7 See James F. Weikel, 54 ECAB 660 (2003). 

8

 5 U.S.C. § 8123(a). See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006). 

9 See V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 

215 (1994). 

10 See Curtis Hall, 45 ECAB 316 (1994); see also K.B., Docket No. 15-11 (issued April 7, 2015). 
7

The impartial medical examiner’s report must actually fulfill the purpose for which it was 

intended; it must resolve the conflict in medical opinion.11 OWCP should ensure that the report 

is comprehensive, clear, and definite and that it is based on current information and supported by 

substantial medical reasoning, as well as a review of the case file.12 If the report is vague, 

speculative, incomplete, or not rationalized, it is OWCP’s responsibility to secure a supplemental 

report from the impartial medical examiner to correct any defects.13 As such, the Board finds 

that OWCP did not meet its burden of proof to terminate appellant’s compensation benefits. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation benefits. 

ORDER 

IT IS HEREBY ORDERED THAT the April 25, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 18, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             11 See M.G., Docket No 14-1361 (issued December 8, 2014); Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11d(2) (September 2010). 

12 Id. See also Billie M. Gentry, 38 ECAB 498 (1987). 

13 Id.