United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Waretown, NJ, Employer 

__________________________________________ 

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Docket No. 17-0215 

Issued: September 19, 2017 

Appearances: Case Submitted on the Record

Aaron B. Aumiller, Esq., for the appellant1

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 October 31, 2016 appellant, through counsel, filed a timely appeal from a May 5, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 Pursuant to 

 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

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of an OWCP 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from May 5, 2016, the date of OWCP’s last decision was 

November 1, 2016. Since using November 4, 2016, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is October 31, 2016 rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

compensation benefits on March 17, 2015; and (2) whether appellant met his burden of proof to 

establish continuing employment-related disability or residuals after March 17, 2015. 

On appeal counsel asserts that a conflict in medical opinion evidence has been created 

between the opinions of appellant’s attending Board-certified neurosurgeon, Dr. Bruce R. 

Rosenblum, an osteopath and a Board-certified neurosurgeon, and Dr. Stanley Askin, a Boardcertified orthopedic surgeon, who completed a second opinion evaluation for OWCP. 

FACTUAL HISTORY 

On April 30, 2012 appellant, then a 47-year-old retail clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on April 9, 2012 he injured the lumbar region of his back while 

putting mail in boxes. He stopped work the next day. 

Appellant initially sought treatment in an emergency department on April 10, 2012 from 

a nurse practitioner who diagnosed low back pain and lumbar strain. Dr. Alfred E. Palmieri, an 

orthopedic surgeon, began treating appellant on April 17, 2012. Following physical 

examination, he diagnosed lumbosacral syndrome, prescribed medication, and physical therapy, 

and advised that appellant should be off work for two weeks. Dr. Palmieri continued to treat 

appellant and recommended a lumbar magnetic resonance imaging (MRI) scan, that was done on 

May 15, 2012. The MRI scan demonstrated a disc bulge at L5-S1 with a small protrusion where 

there was a tear in the annulus, and a mild disc bulge at L4-5. Dr. Palmieri referred appellant for 

pain management.4

 

On August 2, 2012 Dr. Palmieri related a history that appellant began experiencing back 

pain on April 9, 2012 when he bent over while placing mail in lower mail boxes. He noted the 

MRI scan findings, opining that, while they were preexisting, the April 9, 2012 bending incident 

at work exacerbated his lumbar condition. 

On August 13, 2012 OWCP accepted exacerbation of preexisting herniated lumbar disc. 

Appellant, who had received continuation of pay from April 16 to May 24, 2012, and thereafter 

filed claims (Form CA-7) for compensation, beginning August 29, 2012. He received wage-loss 

compensation, beginning that day and was placed on the periodic compensation rolls. 

An October 4, 2012 electrodiagnostic study of the lower extremities demonstrated mild 

S1 radiculopathy. Appellant began pain management with Dr. Yin Michael Yu, a Boardcertified anesthesiologist, in December 2012. 

 3

 5 U.S.C. § 8101 et seq. 

4

 At this time appellant was represented by James P. Brady, Esq. 
3

In December 2012 OWCP referred appellant to Dr. Kenneth P. Heist, a Board-certified 

osteopath specializing in orthopedic surgery, for a second opinion examination. In a January 2, 

2013 report, Dr. Heist noted the history of injury, his review of the medical record, and statement 

of accepted facts (SOAF), and appellant’s complaint of low back pain, aggravated by increased 

activity. He described examination findings and advised that the exacerbation of appellant’s 

preexisting lumbar condition had resolved. Dr. Heist diagnosed lower lumbar nerve root 

compression due to bulging discs at L5-S1, which he did not feel was disabling. On an attached 

work capacity evaluation (Form OWCP-5c), he advised that appellant could return to work as a 

retail clerk with no restrictions. 

Dr. Yu saw appellant on a monthly basis, and on February 27, 2013 performed an 

epidural steroid injection. In a March 26, 2013 report, Dr. Rosenblum noted the history of injury 

and provided physical examination findings. He advised that appellant had post-traumatic 

lumbosacral spine syndrome, and recommended a discogram. Dr. Yu performed a discogram on 

May 22, 2013. On June 18, 2013 Dr. Rosenblum noted that the discogram showed concordant 

pain at L4-5 and L5-S1. He recommended a follow-up computerized tomography (CT) scan of 

the lumbar spine and referred appellant to Dr. Keith M. Rinkus, a Board-certified orthopedic 

surgeon, for consideration of lumbar surgery. Dr. Rosenblum advised that appellant could not 

work. 

Dr. Rinkus initially evaluated appellant on July 1, 2013. He noted appellant’s 

complaints, reviewed medical records, and described findings. Dr. Rinkus diagnosed lytic 

spondylolisthesis grade 1 at L5-S1 with back pain and lower extremity radicular pain, and L4-5 

concordant pain on discogram. Following review of a lumbar MRI scan, he recommended 

surgical intervention and asked that the procedure be authorized. 

OWCP referred the surgical request to its medical adviser, Dr. Henry J. Magliato, a 

Board-certified orthopedic surgeon. In a September 19, 2013 report, Dr. Magliato noted his 

review of the medical record. He concluded that appellant should be referred for a second 

opinion evaluation regarding the need for surgery, whether the proposed surgery was related to 

the employment-related aggravation, and, if surgery was indicated, what procedure should be 

performed.5

 

In a February 4, 2014 report, Dr. Rosenblum noted that appellant was not working and 

was under no treatment or medication for his radiating low back pain. He reiterated his opinion 

that appellant’s back condition was work related and noted that scheduled surgery had been 

cancelled. Dr. Rosenblum concluded that based on appellant’s clinical syndrome, history, and 

radiologic findings, surgery was warranted. He completed a work capacity evaluation (Form 

OWCP-5c) on February 6, 2014 in which he diagnosed lumbar radiculopathy and advised that 

appellant could not work. On an attending physician’s report (Form CA-20), Dr. Rosenblum 

noted that appellant began to feel low back pain when he bent to put mail in a post office box. 

He described MRI scan findings of degenerative disc disease, diagnosed lumbar radiculopathy, 

and advised that appellant could not work. Dr. Rosenblum checked a box marked “yes,” 

indicating that the diagnosed condition was employment related. 

 5

 On October 7, 2013 appellant changed his legal representation to Aaron B. Aumiller, Esq. who continues to 

represent him. 
4

On November 25, 2014 OWCP referred appellant, a SOAF, and evidence of record to 

Dr. Stanley Askin, a Board-certified orthopedic surgeon, for a second opinion evaluation. 

Dr. Askin was specifically asked to comment on whether appellant had disabling residuals of the 

accepted condition and whether the recommended surgery should be authorized. 

In his December 19, 2014 report, Dr. Askin noted the accepted condition of exacerbation 

of preexisting herniated lumbar disc, the history of injury, his review of the SOAF and medical 

record, and appellant’s complaints of lower back pain and a sensation of fatigue in his lower 

extremities. Appellant related that his pain was the same as when it first occurred. Physical 

examination demonstrated an area of reported pain, but no tenderness to touch. Dr. Askin 

advised that appellant’s low back muscles relaxed appropriately with no muscle spasm present. 

Range of motion elicited pain, muscle function was within normal limits, sensation was 

preserved to light touch throughout both lower extremities, and deep tendon reflexes were 

symmetrical. Dr. Askin indicated that appellant reported a tension sensation on active straight 

leg raising on the right. He opined that appellant had no disabling residuals of the accepted 

condition, noting that if he had a symptomatic disc herniation he would have muscle atrophy or 

weakness, dermatomal anesthesia, and asymmetry of deep tendon reflexes, none of which were 

present. Dr. Askin opined that appellant needed no further treatment and that the recommended 

surgery would be inappropriate, noting that it would not address any condition caused by 

appellant’s work activities. He concluded that appellant’s lumbar condition was age appropriate, 

that he could return to work, and that he was capable of lifting 70 pounds occasionally. 

Dr. Askin recommended that appellant lose weight and exercise. In an attached work capacity 

evaluation, he indicated that appellant could return to full-time work without restrictions. 

On February 5, 2015 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. Askin who advised that appellant had no residuals of the accepted condition and 

could return to work without restrictions. 

Appellant did not respond to the notice of proposed termination. By decision dated 

March 17, 2015, OWCP terminated appellant’s wage-loss compensation and medical benefits, 

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

Dr. Askin. 

Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. He submitted a March 31, 2015 report in which Dr. Rosenblum noted that 

appellant was not working and had persistent low back pain without a major radicular 

component. Examination findings included a negative straight-leg raising, and gait was 

unimpaired, with decreased strength of the extensor hallucis longus and extensor digitorum at 

4+/5 on the right. Dr. Rosenblum recommended that appellant return to Dr. Rinkus to undergo 

the previously recommended surgery for spondylolisthesis. 

At the hearing, held on September 16, 2015, counsel argued that, because Dr. Askin was 

an orthopedic surgeon and not a neurologist or a neurosurgeon, his opinion should not carry the 

weight of the medical evidence, rather the opinions of Dr. Rinkus and Dr. Rosenblum were more 

appropriate. Appellant testified that he was not working. 
5

In an October 11, 2015 report, Dr. Rosenblum reported examination findings from 

March 26, 2013, February 4, 2014, and March 31 and June 18, 2015 office visits. He noted that 

a lumbar spine MRI scan demonstrated degenerative disc disease with disc space narrowing at 

L5-S1 and to a lesser extent at L4-5. Dr. Rosenblum opined that appellant suffered a posttraumatic right lumbar radiculopathy as a result of the April 9, 2012 employment incident which 

failed to respond to conservative management and he had lytic spondylolisthesis, L5-S1, bilateral 

foraminal stenosis, and concordant pain at L4-5, with an abnormal-appearing disc at L4-5 

demonstrated on postdiscogram CT scan.6

 He reiterated that he and Dr. Rinkus recommended 

lumbar surgery. Dr. Rosenblum maintained that the recommended procedure was causally 

related to the April 9, 2012 work injury as it was to alleviate post-traumatic lumbar 

radiculopathy. He advised that appellant had initially reported a sensation of weakness in his 

right leg which demonstrated a radicular component to his pain, and that he had a partial motor 

deficit with weakness of 4+/5 of the right extensor digitorum, gastrocnemius, and extensor 

hallucis longus on March 31, 2015, all of which were indicative of radicular dysfunction which 

did not preexist appellant’s work-related injury. 

By decision dated November 13, 2015, an OWCP hearing representative found that 

Dr. Rosenblum failed to explain how the April 9, 2012 employment injury resulted in posttraumatic right lumbar radiculopathy. He found that the weight of the medical evidence rested 

with the opinion of Dr. Askin and affirmed the March 17, 2015 decision. 

On January 25, 2016 appellant, through counsel, requested reconsideration. He 

submitted a December 26, 2015 report in which Dr. Rosenblum maintained that appellant’s posttraumatic lumbosacral spine syndrome was clearly related to the April 9, 2012 work injury 

because he had no prior problems with his lumbosacral spine before this injury. Dr. Rosenblum 

related that lumbosacral spine disorders were caused by the type of injury, bending to place mail 

in a post office box. He reiterated his examination findings and concluded that appellant’s 

current syndrome was related to the April 9, 2012 employment injury. 

In a merit decision dated May 5, 2016, OWCP again found that the weight of the medical 

evidence rested with the opinion of Dr. Askin and denied modification of the November 13, 

2015 decision. 

LEGAL PRECEDENT -- ISSUE 1 

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 

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

 

 6

 A copy of the CT scan report is not found in the case record. 

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

8 Id.
6

ANALYSIS -- ISSUE 1 

OWCP accepted that on April 9, 2012 appellant sustained exacerbation of preexisting 

herniated lumbar disc. It terminated his wage-loss compensation and medical benefits on 

March 17, 2015, based on the opinion of Dr. Askin, an OWCP referral physician. 

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

comprehensive December 19, 2014 report. He noted the accepted condition of exacerbation of 

preexisting herniated lumbar disc, the history of injury, his review of the SOAF and medical 

record, and appellant’s complaints of lower back pain and a sensation of fatigue in his lower 

extremities. Dr. Askin thoroughly described his examination findings. He opined that appellant 

had no disabling residuals of the accepted condition, noting that if he had a symptomatic disc 

herniation he would have muscle atrophy or weakness, dermatomal anesthesia, and asymmetry 

of deep tendon reflexes, none of which were present. Dr. Askin advised that appellant needed no 

further treatment and that the recommended surgery would be inappropriate, noting that it would 

not address any condition caused by appellant’s work activities. He concluded that appellant’s 

lumbar condition was age appropriate, and that he could return to full-time work with no 

restriction and was capable of lifting 70 pounds occasionally. 

The medical evidence submitted by appellant closest in time to Dr. Askin’s December 19, 

2014 report were from Dr. Rosenblum dated February 4 and 6, 2014. He noted a history that 

appellant bent to put mail in a post office box and began to feel low back pain and that he was 

not working and was under no treatment or medication for his radiating low back pain. 

Dr. Rosenblum diagnosed lumbar radiculopathy, opined that the condition was employment 

related, and advised that appellant could not work. While he opined that appellant’s April 9, 

2012 work injury had not resolved, he did not offer any explanation of the mechanics of how this 

injury caused appellant’s diagnoses almost two years after the employment injury or why he 

continued to be disabled. Moreover, Dr. Rosenblum indicated that appellant was under no 

treatment and taking no medication on February 4, 2014. 

The Board finds that Dr. Rosenblum’s February 2014 reports, which predated the 

termination by over one year, are insufficient to establish a conflict in medical evidence with the 

well-rationalized opinion of Dr. Askin whose opinion represents the weight of the medical 

evidence at the time OWCP terminated benefits. OWCP properly relied on his report in 

terminating appellant’s wage-loss compensation and medical benefits. Dr. Askin 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. Askin addressed the medical record and made his own examination 

findings to reach a reasoned conclusion regarding appellant’s conditions.9

 At the time benefits 

were terminated, he found no basis on which to attribute any residuals or continued disability to 

appellant’s accepted condition of exacerbation of preexisting herniated lumbar disc. Dr. Askin’s 

 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). 
7

opinion is found to be probative evidence and reliable, and sufficient to justify OWCP’s 

termination of benefits for the accepted condition.10

LEGAL PRECEDENT -- ISSUE 2 

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

medical benefits on March 17, 2015, the burden shifted to him to establish continuing disability 

causally related to the accepted knee conditions.11 Causal relationship is a medical issue. The 

opinion of the physician must be based on a complete factual and medical background of the 

claimant, must be one of reasonable medical certainty and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.12

ANALYSIS -- ISSUE 2 

The Board finds that appellant failed to meet his burden of proof to establish continuing 

residuals or disability related to the accepted exacerbation of preexisting herniated lumbar disc 

after March 17, 2015. 

Subsequent to the termination appellant submitted a March 31, 2015 report in which 

Dr. Rosenblum reported examination findings from office visits from March 26, 2013, 

February 4, 2014, and March 31 and June 18, 2015. Dr. Rosenblum noted the MRI scan findings 

of degenerative disc disease with disc space narrowing at L5-S1 and to a lesser extent at L4-5. 

He opined that appellant suffered a post-traumatic right lumbar radiculopathy as a result of the 

April 9, 2012 employment injury which failed to respond to conservative management. 

Dr. Rosenblum reported that on March 31, 2015 appellant had a partial motor deficit with 

weakness of 4+/5 of the right extensor digitorum, gastrocnemius, and extensor hallucis longus on 

March 31, 2015, all of which were indicative of radicular dysfunction which did not preexist 

appellant’s work-related injury. In a December 26, 2015 report, he maintained that appellant’s 

post-traumatic lumbosacral spine syndrome was clearly related to the April 9, 2012 work injury 

because he had no prior problems with his lumbosacral spine. Dr. Rosenblum related that 

lumbosacral spine disorders were caused by the type of injury, bending to place mail in a post 

office box. He concluded that appellant’s current syndrome was related to the April 9, 2012 

employment injury. 

An opinion that a condition is causally related to an employment injury because the 

employee was asymptomatic before the injury, but symptomatic after it, is insufficient, without 

supporting rationale, to establish causal relationship.13 Dr. Rosenblum must provide an opinion 

on whether the described employment injury caused or contributed to claimant’s diagnosed 

medical condition and support that opinion with medical reasoning to demonstrate that the 

 10 Supra note 7. 

11 See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003). 

12 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

13 Michael S. Mina, 57 ECAB 379 (2006). 
8

conclusion reached is sound, logical, and rational.14 He provided no real explanation as to how 

the April 9, 2012 work injury caused appellant’s condition or disability after March 17, 2015. 

Dr. Rosenblum did not begin treating appellant until March 26, 2013, almost one year after the 

employment injury. He failed to explain how the conditions that he found on his last 

examination of record, March 31, 2015, were due to the employment injury, and these conditions 

were not described until March 31, 2015, almost three years after the April 9, 2012 employment 

injury. 

The opinion of a physician supporting causal relationship must be one of reasonable 

medical certainty that the condition for which compensation is claimed is causally related to a 

claimant’s federal employment and such relationship must be supported with affirmative 

evidence, explained by medical rationale and be based upon a complete and accurate medical 

and factual background of the claimant.15 The Board has long held that medical opinions not 

containing rationale on causal relation are of diminished probative value and are generally 

insufficient to meet appellant’s burden of proof.16 The Board finds that Dr. Rosenblum’s reports 

are of limited probative value on the issue of whether appellant had any continuing disability or 

condition due to the April 9, 2012 employment injury. 

The factors that comprise the evaluation of medical evidence include the opportunity for 

and the thoroughness of physical 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.17 As there is no medical evidence of 

record of sufficient rationale to establish that appellant continued to be disabled due to the 

April 9, 2012 employment injury, he did not meet his burden of proof to establish that he 

continued to be disabled due to the accepted exacerbation of preexisting lumbar herniated disc 

after March 17, 2015. 

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 

compensation benefits on March 17, 2015 and that he did not meet his burden of proof to 

establish a continuing employment-related disability or residuals after March 17, 2015. 

 14 John W. Montoya, 54 ECAB 306 (2003). 

15 A.D., 58 ECAB 149 (2006). 

16 Carolyn F. Allen, 47 ECAB 240 (1995). 

17 Nicolette R. Kelstrom, 54 ECAB 570 (2003). 
9

ORDER 

IT IS HEREBY ORDERED THAT the May 5, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: September 19, 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