United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Camden, NJ, Employer

__________________________________________

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Docket No. 17-1000

Issued: October 25, 2017

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

JURISDICTION

On April 7, 2017 appellant, through counsel, filed a timely appeal from a November 16, 

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 over the merits of this case.

ISSUE

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

compensation and medical benefits, effective April 12, 2016.

 

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

FACTUAL HISTORY

Appellant, then a 43-year-old letter carrier, filed occupational disease claims

(CA-2 forms). In the first claim form, dated December 19, 2000, he described a November 6, 

2000 incident when he pulled something in his back while loading his vehicle with trays of mail. 

Appellant described the nature of the injury as a C4-5 disc herniation with multilevel 

degenerative changes. In a second claim form, dated January 2, 2001, he alleged that the 

performance of repetitive duties had contributed to C4-5 disc herniations with multilevel 

degenerative changes. Both forms provided November 6, 2000 as the date appellant first became 

aware of an employment-related condition. Appellant stopped work on November 7, 2000. He

returned to limited duty on January 9, 2001. 

OWCP developed the claim as a traumatic injury based on the November 6, 2000 

incident and accepted the claim for cervical and lumbosacral radiculopathy.3 Appellant worked 

light duty and then filed a claim for a recurrence of disability (Form CA-2a) commencing 

May 18, 2001. OWCP accepted appellant’s claim for a recurrence of disability on 

September 19, 2001. Appellant was placed on the periodic compensation rolls and received 

wage-loss compensation every 28 days commencing June 16, 2002. 

In a report dated October 11, 2001, Dr. Tariq Siddiqi, a Board-certified neurosurgeon, 

noted that appellant had disc protrusions at C5-6 and cervical spondylosis at C5-7, but he did not 

require surgery. He opined that appellant had reached maximum medical improvement and the 

only recommendation was for a functional capacity evaluation (FCE). 

The employing establishment referred appellant for a fitness-for-duty examination. In a 

report dated November 26, 2001, Dr. Steven Valentino, an osteopath, diagnosed resolved history 

of brachial and lumbosacral neuritis. He reported that he found no medical conditions currently 

contributing to total disability.

Appellant continued to receive wage-loss compensation. An attending osteopath,

Dr. Michael Voyack, indicated in a March 5, 2006 work capacity evaluation (OWCP-5c) that 

appellant remained totally disabled. 

OWCP referred appellant for a second opinion examination with Dr. Surendrapal Mac, a 

Board-certified orthopedic surgeon. In a report dated September 1, 2006, Dr. Mac provided a 

history and results on examination. He referred to appellant loading a vehicle with mail. 

Dr. Mac opined that cervical and lumbar radiculopathy had resolved. He indicated that appellant 

had limitations due to cervical spondylosis, lumbar degenerative arthritis, and lumbar 

degenerative disc disease. 

OWCP referred appellant to Dr. Peter Spohn, a Board-certified orthopedic surgeon, for

an impartial medical evaluation.4 In a report dated March 15, 2007, Dr. Spohn provided a 

 

3 A traumatic injury is a condition produced by events or incidents occurring within one workday or shift. 

20 C.F.R. § 10.5(ee). 

4

5 U.S.C. § 8123(a) provides that if there is a disagreement between an attending physician and a physician 

selected by OWCP, a third physician shall be appointed to make an examination. 
3

history and results on examination. He indicated that on November 6, 2000 appellant was 

loading a vehicle with trays of mail. Dr. Spohn opined that appellant continued to have 

employment-related medical conditions, including aggravations of cervical and lumbar 

degenerative disc disease. He provided work restrictions that allowed no more than five pounds 

lifting.

OWCP prepared an updated statement of accepted facts (SOAF), dated July 15, 2010, 

which reported that accepted conditions now included: lumbosacral neuritis or radiculitis, 

brachial neuritis or radiculitis, aggravation of cervical spondylosis, aggravation of degenerative 

lumbar intervertebral disc, and displacement of cervical intervertebral disc. 

OWCP referred appellant for a second opinion examination by Dr. William Lehman, a 

Board-certified orthopedic surgeon. In a report dated October 23, 2010, Dr. Lehman provided a 

history and results on examination. He opined that aggravations of cervical spondylosis and 

lumbar degenerative disc disease had not resolved. Dr. Lehman reported that there was no 

clinical evidence of brachial neuritis or displacement of cervical intervertebral disc. He noted 

that an FCE had not been performed.

The record indicates that appellant underwent an FCE on December 7, 2010. By report 

dated August 9, 2011, Dr. Lehman reported that bending, squatting, and reaching were not 

tolerated due to back pain, which would limit appellant’s ability to perform light-duty work. He

completed an OWCP-5c work capacity evaluation form, and provided work restrictions that 

included 15 pounds lifting and sitting one hour at a time.

In a report dated August 2, 2013, Dr. Voyack opined that appellant remained disabled 

due to chronic neck and back pain, with radiculopathy. 

OWCP again referred appellant for a second opinion examination by Dr. Seth Jaffe, an 

osteopath. In a report dated November 25, 2014, Dr. Jaffe provided a history and results on 

examination. He found that cervical spinal motion was 90 percent of normal in flexion, 

extension, side bending, and rotation, with some cervicotrapezial spasm and tenderness. 

Neurological testing was negative. As to the lumbar spine, range of motion was 80 percent of 

normal, straight leg raising test and sciatic tension signs were negative. Dr. Jaffe noted that 

appellant could heel walk, toe walk, and tandem walk, with some mild tenderness in the 

sacroiliac joints. He diagnosed cervical spondylosis with history of C5-6 disc herniation, 

multilevel lumbar disc disease with history of herniated discs L4-5 and L5-S1, and chronic pain 

syndrome. Dr. Jaffe opined that appellant’s current condition was causally related to the 

employment injury and that appellant could return to light-duty work. He also noted that 

appellant’s inability to work full duty was not related to any medical conditions which related to 

his current orthopedic disability. Dr. Jaffe completed an OWCP-5c form indicating that 

appellant could work four to six hours per day, with restrictions that included a 20-pound lifting 

restriction and three hours sitting.

The record contains a memorandum from an OWCP claims examiner dated May 22, 

2015, reviewing the findings of Dr. Jaffe. The claims examiner wrote that it was unclear why

Dr. Jaffe limited appellant to part-time work, given the examination findings, and that an FCE 

was needed. Appellant underwent an FCE on July 28, 2015. 
4

On September 23, 2015 OWCP determined that a conflict in the medical evidence existed 

as to whether appellant could return to work. It selected Dr. Timothy Wagner, a Board-certified 

orthopedic surgeon, as an impartial medical examiner. A SOAF dated October 15, 2015 noted 

the accepted conditions and indicated that appellant remained off work. It indicated that he had 

claimed an injury from loading a vehicle with trays of mail. The questions posed to Dr. Wagner 

included whether appellant was totally disabled solely due to residuals of accepted work 

conditions and whether appellant was disabled from the date of injury. 

In a report dated November 24, 2015, Dr. Wagner provided a history and results on 

examination.5 He reported that in his physical examination of the cervical spine, both upper 

extremities, lumbar spine, and both lower extremities, he found appellant to be neurologically 

normal. Dr. Wagner wrote that any loss of range of motion of the cervical spine and lumbar 

spine to be secondary to appellant’s state of physical conditioning, for which appellant was 

responsible. He noted the 2001 reports from Dr. Siddiqui and Dr. Valentino. Dr. Wagner wrote 

that any changes in the lumbar spine noted at a later date were part of the normal aging process 

which would have progressed, and were not related to a strain injury to appellant’s cervical spine 

and/or lumbar spine when lifting a tray of mail. He opined that appellant had none of the 

conditions listed on the SOAF which were active and he had no objective symptoms noted on 

physical examination, but a multitude of symptomatic complaints which were not corroborated 

by clinical examination. Dr. Wagner opined that appellant’s only problem was that he was 

physically deconditioned. He also wrote that appellant had mental problems that had not been 

addressed, noting that a July 2003 report had indicated that appellant would benefit from a pain 

management program with psychological, and general reconditioning, but he had declined to 

enter the program.

By letter dated February 24, 2016, OWCP advised appellant that it proposed to terminate 

his wage-loss compensation and medical benefits. It found that the weight of the medical 

evidence was represented by Dr. Wagner and was sufficient to justify termination of 

compensation. Appellant was advised to submit any additional evidence or argument within 30 

days.

Counsel submitted a March 9, 2016 letter asserting his belief that Dr. Wagner had not 

found that appellant had recovered from the work injury. He also asserted that Dr. Wagner had 

found appellant to be deconditioned and raised a psychological component. 

On March 22, 2016 appellant submitted a March 11, 2016 report from Dr. Voyack, who 

provided results on examination. Dr. Voyack wrote that appellant had more pain than when he 

saw appellant in 2014.

By decision dated April 12, 2016, OWCP terminated wage-loss compensation and 

medical benefits. It found that the weight of the evidence was represented by Dr. Wagner.

On April 19, 2016 counsel requested a hearing before an OWCP hearing representative. 

A hearing was held on September 26, 2016. Counsel argued that Dr. Wagner’s report was 

 

5 The record also contains a November 6, 2015 review of the medical evidence of record by Dr. Wagner.
5

insufficient to terminate compensation. He also argued that asking Dr. Wagner whether 

appellant was totally disabled solely due to accepted work conditions was prejudicial. 

By decision dated November 16, 2016, the hearing representative affirmed the April 12, 

2016 termination decision, finding that the medical evidence of record was sufficient to justify 

termination of compensation benefits. 

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation. After it has been determined that an employee has disability 

causally related to his or her employment, OWCP may not terminate compensation without 

establishing that the disability had ceased or that it was no longer related to the employment.6 

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.7

ANALYSIS

In the present case, appellant had filed CA-2 forms dated December 19, 2000 and 

January 2, 2001. The December 19, 2001 Form CA-2 referred to loading trays of mail on

November 6, 2000. While the January 2, 2001 Form CA-2 referred briefly to repetitive duties, 

appellant did not provide a description of the repetitive duties. OWCP developed the claim as a 

traumatic injury claim based on loading trays of mail on November 6, 2000.8

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

compensation and medical benefits. OWCP properly found a conflict in the medical evidence as 

to appellant’s continuing disability as Dr. Jaffe had indicated that appellant could return to 

light-duty work, while the attending physician, Dr. Voyack, found that appellant remained totally 

disabled. 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 an examination to resolve the conflict.

9

 

OWCP selected Dr. Wagner to resolve the conflict. It is well established that, when a 

case is referred to an impartial medical examiner 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.10 Dr. Wagner provided a complete history 

 

6 Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

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

8

Supra note 3. 

9

5 U.S.C. § 8123. Id. at § 10.321 indicates that the examination by the third physician is called a referee or 

impartial examination. 

10 See F.C., Docket No. 16-1523 (issued May 15, 2017); Gloria J. Godfrey, 52 ECAB 486, 489 (2001).
6

and he reviewed in detail the medical evidence of record. He provided results on examination 

and based his opinion on a complete and accurate background. Dr. Wagner provided a wellreasoned medical opinion that appellant had no current employment-related medical conditions. 

He found that any changes in the spine were part of the normal aging process, not an 

employment-related condition, and he indicated that there were no objective findings on 

examination and no evidence of an active employment-related condition. Dr. Wagner indicated 

that appellant’s only problems related to a physical deconditioning, unrelated to the employment 

injury. The Board, thus, finds that Dr. Wagner represents the weight of the medical evidence in 

this case.

On appeal counsel argues that Dr. Wagner’s report was insufficient to meet OWCP’s 

burden of proof. He argues that Dr. Wagner failed to acknowledge the full extent of appellant’s 

accepted conditions, but Dr. Wagner provided a detailed history and review of the evidence, and 

the SOAF clearly reported the accepted conditions. A psychological condition has not been 

accepted as causally related to the accepted injury and appellant never filed a claim based on 

psychological conditions causally related to his accepted injury.11 Counsel argues that

Dr. Wagner reported that appellant was not totally disabled solely due to an employment injury, 

without considering whether there was a contribution from an employment injury. Dr. Wagner, 

as noted, found that there was no continuing active employment-related condition. Counsel also 

argues that the SOAF was improper as it contained information that biased Dr. Wagner, since it 

confirmed that appellant remained off work and received compensation every 28 days. The 

information as to appellant’s continuing disability is relevant as the issue was whether he

remained disabled due to an employment injury. OWCP procedures explain that the SOAF

should provide the claimant’s “employment history, including periods of wage loss and returns 

to full or light duty for the present claim -- helps put the employee’s injury and work history in 

perspective. If the employee did not stop work, that should be reported.”

12

For the reasons discussed above, the Board finds that OWCP met its burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits, effective April 12, 2016. 

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 wage-loss 

and medical compensation benefits effective April 12, 2016.

 

11 See C.D., Docket No. 09-1152 (issued February 23, 2010). 

12 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,

Chapter 2.809.5 (September 2009). 
7

ORDER

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

Compensation Programs dated November 16, 2016 is affirmed. 

Issued: October 25, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board