United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.S., Appellant

and

U.S. POSTAL SERVICE, PRIORITY MAIL 

PROCESSING CENTER, Miami, FL, Employer

__________________________________________

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Docket No. 17-1219

Issued: October 27, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 5, 2017 appellant filed a timely appeal from a February 23, 2017 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 met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective February 24, 2017.

FACTUAL HISTORY

On July 16, 2003 appellant, then a 52-year-old mail handler, filed an occupational disease 

claim (Form CA-2) alleging that her employment duties caused lower back pain. She had 

stopped work on July 9, 2003. OWCP accepted bulging disc at L1-2. Appellant accepted a 

 

1

5 U.S.C. § 8101 et seq.
2

modified-duty employment position on July 28, 2003 and claimed intermittent compensation 

thereafter. In a July 29, 2004 decision, OWCP denied her claim for intermittent compensation 

for the period August 10, 2003 to May 14, 2004. Appellant continued modified duty.

In reports dated March 18 to April 19, 2004, Dr. Jon D. Donshik, a Board-certified 

orthopedic surgeon, noted appellant’s history of employment-related back pain. He provided 

findings and diagnosed neuroforaminal stenosis at multiple levels, probably due to loss of disc 

space heights. Dr. Donshik indicated that electrodiagnostic testing of the lower extremities was 

normal. On May 25, 2004 he noted that he explained to appellant that her complaints and 

symptoms were out of proportion to objective findings, and that he would see her in follow up as 

needed. On August 17, 2004 Dr. Donshik advised that appellant was working full duty, but 

continued to complain of lower extremity pain.2

In May 2005, appellant began treatment with Dr. Lance J. Lehmann, Board-certified in 

anesthesiology and pain medicine. Dr. Lehmann provided treatment on a monthly basis 

including epidural steroid injections to the lumbar spine.

On November 6, 2009 appellant filed a recurrence of disability claim (Form CA-2a), 

alleging that the recurrence occurred on October 28, 2009 when she stopped work. OWCP 

accepted the recurrence of total disability and appellant received wage-loss compensation and 

was thereafter placed on the periodic compensation rolls in January 2010. Appellant did not 

return to work.

In April 2010, appellant was referred to James S. Sullivan, a rehabilitation counselor for 

vocational rehabilitation services.3 Mr. Sullivan prepared labor market surveys for the positions 

of secretary, receptionist, and administrative assistant.

Dr. Lehmann continued to treat appellant on a monthly basis.

In October 2010, OWCP referred appellant to Dr. Brad K. Cohen, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In an October 7, 2010 report, Dr. Cohen 

diagnosed work-related L1-2 annular disc bulging, chronic back pain, multilevel lumbar 

degenerative disease with neural foraminal stenosis and lower extremity radiculopathy, and 

obesity. He advised that the accepted L1-2 bulging disc had resolved without residuals and that 

appellant’s continued symptoms were secondary to nonemployment-related multilevel lumbar 

degenerative changes, and that she had no employment-related restrictions. In an attached work 

capacity evaluation (Form OWCP 5c) he advised that appellant could not return to her regular 

job and provided permanent restrictions that were due to her lumbar degenerative disc disease.

 

2

In May 2004, OWCP referred appellant to Dr. Ismael Montane, a Board-certified orthopedic surgeon, for a 

second opinion evaluation. In a July 1, 2004 report, Dr. Montane noted that appellant had no lumbar radiculopathy 

and could return to her usual job.

3

In an August 11, 2010 decision, OWCP notified appellant that her compensation had been suspended as of 

August 1, 2010 because she failed to submit a requested EN1032 form. The form was submitted on August 20, 

2010 and wage-loss compensation was resumed.
3

On October 22, 2010 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits. It found that the weight of the medical opinion evidence rested with the 

opinion of Dr. Cohen who advised that appellant’s work-related condition had resolved and that 

she had no residuals or disability due to the employment injury.

On November 2, 2010 Dr. Lehman noted appellant’s complaint of back and bilateral leg 

pain. He diagnosed herniated discs from L1-2 through L5-S1 and described appellant’s 

treatment. Dr. Lehmann advised that appellant could perform light-duty work.

OWCP determined that a conflict in medical evidence had been created between the 

opinions of Dr. Lehmann and Dr. Cohen regarding whether the accepted condition had resolved 

and appellant’s work capabilities. It then referred appellant to Dr. Kenneth I. Jarolem, Boardcertified in orthopedic surgery, for an impartial evaluation.

In a January 28, 2011 report, Dr. Jarolem diagnosed persistent complaints of lower back 

and radiating leg pain and degenerative scoliosis. He opined that the work injury did not cause 

appellant’s objective radiographic findings which were clearly a degenerative progress, but that 

appellant’s work activities permanently aggravated the accepted condition at L1-2 which had not 

resolved. Dr. Jarolem opined that appellant’s prolonged disability was due to her substantial 

degenerative condition, but that she did have continued pain due to the employment injury and;

therefore, she could not return to the mail handler position, but was capable of work. On an 

attached work capacity evaluation form, Dr. Jarolem advised that appellant had permanent 

restrictions of no twisting, bending, stooping, squatting, or kneeling, with a 10-pound restriction 

on pushing, pulling, and lifting.

In a supplemental report dated May 18, 2011, Dr. Jarolem noted that he had reviewed a 

May 16, 2011 lumbar spine magnetic resonance imaging (MRI) scan.

4

 He opined that, based on 

his review of the MRI scan, there were no changes to his previous opinion.

On July 5, 2011 OWCP proposed to reduce appellant’s compensation based on her 

capacity to earn wages as a secretary, a sedentary position.

Dr. Lehmann continued to submit monthly reports describing appellant’s treatment.

By decision dated September 1, 2011, OWCP reduced appellant’s wage-loss 

compensation based on her capacity to earn wages as a secretary, effective July 5, 2011. It 

utilized the Shadrick formula5and found that appellant had a 51 percent loss of wage-earning 

capacity.

Appellant continued monthly treatment with Dr. Lehmann, including epidural injections.

In August 2016, OWCP referred appellant to Dr. Donshik for a second opinion

evaluation. In an August 30, 2016 report, Dr. Donshik noted the history of injury, appellant’s 

complaint of back and knee pain, and his review of the medical record. Lumbar x-rays that day 

 

4 A copy of the MRI scan report is not found in the record.

5 Albert C. Shadrick, 5 ECAB 376 (1953). See discussion infra.
4

showed curvature and lumbar spondylosis. Pelvis x-ray demonstrated no evidence of hip or 

pelvic fracture or osteoarthritis. Examination of the cervical spine demonstrated full range of 

motion. Appellant complained of diffuse lower lumbar spine pain on thoracolumbar spine 

examination which showed no palpable spasm. She could bend and touch her toes with some 

knee flexion. Straight leg raising and femoral stretch tests were negative. Bilateral lower 

extremities revealed no gross evidence of sensory or motor deficit. Dr. Donshik advised that the 

work injury had resolved, noting that disc bulging typically did not cause back pain. He opined 

that appellant had degenerative scoliosis and lumbar spondylosis which more likely caused her 

back pain. Dr. Donshik concluded that, while appellant could not return to a mail handler 

position, this was due to her age and not because she was injured at work.

In a November 1, 2016 report, Dr. Lehmann reiterated his previous findings and 

conclusions.

On November 30, 2016 OWCP proposed to terminate appellant’s wage-loss and medical 

benefits. It found that the weight of the medical opinion evidence rested with the opinion of

Dr. Donshik who advised that appellant’s work-related condition had resolved and that she had 

no residuals or disability due to the employment injury.

Appellant thereafter submitted a December 14, 2016 report in which Dr. Lehmann noted 

a chief complaint of back and upper leg pain. Dr. Lehmann diagnosed lumbar herniated discs 

and facet syndrome. He noted that appellant ambulated with minimal difficulty and could 

function and do most of her daily activities, but was limited with prolonged standing or walking. 

He noted that he had reviewed the proposed termination which was based on an August 2016 

report that deemed that her work-related injury had resolved and her findings have progressed to 

chronic changes in the lumbar spine. Dr. Lehmann indicated that appellant’s treatment would 

continue and she needed to check with OWCP to find out how her insurance would transition to 

Medicare since her workers’ compensation case had now resolved.6

By decision dated February 23, 2017, OWCP terminated appellant’s wage-loss and 

medical benefits, effective February 24, 2017. It noted that Dr. Lehmann did not dispute

Dr. Donshik’s findings and found that the weight of the medical evidence established that the 

accepted L1-2 annular bulging disc had resolved with no residuals and that appellant had no 

disability due to the employment injury.

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

modification or termination of an employee’s benefits. It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.7 

 

6 Dr. Lehmann also provided a procedure note for an epidural injection on November 4, 2016.

7

Jaja K. Asaramo, 55 ECAB 200 (2004).
5

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.8 

ANALYSIS

OWCP accepted appellant’s occupational disease claim for bulging annular disc at L1-2. 

It terminated her wage-loss compensation and medical benefits on February 24, 2017, based on 

the opinion of Dr. Donshik, an OWCP referral physician.

The medical evidence relevant to the March 17, 2015 termination includes Dr. Donshik’s 

comprehensive August 30, 2016 report. Dr. Donshik noted the history of injury, appellant’s 

complaint of back and knee pain, and his review of the medical record. He thoroughly described 

his examination findings, noting that appellant had no palpable spasm on thoracolumbar spine 

examination. Although she complained of back pain, appellant could bend and touch her toes 

with some knee flexion. Straight leg raising and femoral stretch tests were negative. Bilateral 

lower extremities revealed no gross evidence of sensory or motor deficit. Dr. Donshik advised 

that the work injury had resolved, noting that disc bulging typically did not cause back pain and 

that appellant had degenerative scoliosis and lumbar spondylosis which more likely caused her 

back pain. He concluded that, while appellant could not return to a mail handler position, this 

was due to her age and not because she was injured at work.

Dr. Lehmann, appellant’s attending pain management specialist, noted on December 14, 

2016 a chief complaint of back and upper leg pain and diagnosed lumbar herniated discs and 

facet syndrome, neither of which are accepted conditions. He reported that appellant ambulated 

with minimal difficulty and could function and do most of her daily activities, but was limited 

with prolonged standing or walking. Dr. Donshik indicated that he reviewed the proposed 

termination which was based on an August 2016 report that deemed that her work-related injury 

had resolved and her findings had progressed to chronic changes in the lumbar spine. He

indicated that appellant’s treatment would continue, but she needed to find out how her insurance 

would transition to Medicare since her workers’ compensation case had now resolved.

Dr. Lehmann did not dispute Dr. Donshik’s conclusion. His opinion is certainly 

insufficient to establish a conflict in medical evidence. Dr. Donshik provided a well-rationalized 

opinion explaining that appellant’s employment-related condition had resolved and that she had 

no employment-related disability. It, thus, represents the weight of the medical evidence at the 

time OWCP terminated benefits. OWCP properly relied on Dr. Donshik’s report in terminating 

appellant’s wage-loss compensation and medical benefits. Dr. Donshik had full knowledge of 

the relevant facts and evaluated the course of appellant’s accepted conditions. His opinion was 

based on proper factual and medical history and his report contained a detailed summary of this 

history. Dr. Donshik addressed the medical record and made his own examination findings to 

reach a reasoned conclusion regarding appellant’s conditions.9 He found no basis on which to 

 

8

Id.

9

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).
6

attribute any residuals or continued disability to appellant’s accepted condition of exacerbation 

of preexisting herniated lumbar disc. Dr. Donshik’s opinion is found to be probative evidence 

and reliable, and sufficient to justify OWCP’s termination of benefits for the accepted 

condition.10

CONCLUSION

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

compensation and medical benefits effective February 24, 2017.

ORDER

IT IS HEREBY ORDERED THAT the February 23, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 27, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

10 Jaja K. Asaramo, supra note 7.