United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0984 

Issued: November 17, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 8, 2016 appellant filed a timely appeal of a January 28, 2016 merit decision of 

the Office of Workers’ Compensation Programs1

 (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 the case.3

 1

 Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its 

discretion pursuant to 20 C.F.R. § 501.5(a) the Board by a July 27, 2016 order, denied appellant’s request because it 

could adequately address appellant’s contentions based on a review of the case record. Order Denying Request for 

Oral Argument, Docket No. 16-0984 (issued July 27, 2016). 

2

 5 U.S.C. § 8101 et seq.

3

 The Board notes that appellant submitted additional evidence after OWCP rendered its January 28, 2016 

decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time 

of its final decision. Therefore the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R. 

§ 501.2(c)(1). 
2

ISSUE 

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

compensation and medical benefits effective January 28, 2016. 

FACTUAL HISTORY 

On March 5, 2011 appellant, then a 28-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained muscle spasms after lifting the back gate of a mail 

delivery vehicle on that date. He sought treatment at the emergency room and received a 

diagnosis of lumbosacral strain. Appellant returned to light-duty work on March 10, 2011. 

Appellant filed a claim for a recurrence of disability (Form CA-2a) on April 30, 2011 

alleging that on that date he stopped work due to continuing back pain. OWCP accepted his 

claim for lumbar sprain on May 5, 2011 noting that his claim had been initially handled to allow 

for payment of a limited amount of medical expenses. Appellant returned to light-duty work on 

July 28, 2011. 

On October 24, 2011 Dr. Nancy V. Rodway, a physician Board-certified in occupational 

medicine, examined appellant and reviewed the results of his magnetic resonance imaging (MRI) 

scan. She diagnosed thoracic strain and T8-9 disc herniation which she attributed to appellant’s 

lifting incident at work. Dr. Rodway opined that appellant was partially disabled. She provided 

work restrictions on November 14, 2011. On November 21, 2011 Dr. Rodway noted that she 

had first examined appellant on May 6, 2011 due to complaints of left-sided back pain caused by 

lifting up a rear door on his mail truck. Appellant exhibited spasm to his left rhomboid and left 

piriformis. Dr. Rodway diagnosed lumbar and thoracic sprain and returned appellant to full duty 

on July 4, 2011. 

OWCP authorized wage-loss compensation benefits from June 4 through 30, 2011 on 

December 15, 2011. The employing establishment removed appellant from employment, 

effective December 3, 2011. On December 29, 2011 OWCP’s medical adviser opined that 

appellant’s T8-9 disc herniation was causally related to his March 5, 2011 lifting incident. He 

recommended that appellant’s claim be expanded to include a herniated disc at T8-9. By 

decision dated January 12, 2012, OWCP accepted thoracic herniated disc at T8-9 as due to 

appellant’s March 5, 2011 employment incident. 

Dr. Rodway completed a report on January 11, 2012 and continued to support appellant’s 

work restrictions including lifting no more than 10 pounds, no climbing, twisting, pulling, or 

pushing. She indicated that appellant could drive a vehicle for one hour a day. Dr. Rodway 

prohibited appellant from performing a mounted route. 

In a letter dated January 23, 2012, OWCP requested that the employing establishment 

provide the reasons for appellant’s termination to determine whether he was eligible for further 

wage-loss compensation payments through OWCP. The employing establishment submitted a 

copy of a letter of warning dated March 19, 2011 that it had issued to appellant for unsatisfactory 

work performance, and failure to work in a safe manner. In a notification of personnel action 
3

(Form SF-50) dated December 3, 2011, appellant’s last day in pay status was December 3, 2011 

due to termination of his appointment. 

OWCP entered appellant on the periodic rolls on March 8, 2012. Dr. Emad Mikhail, a 

physician Board-certified in pain medicine, provided appellant with a series of thoracic epidural 

steroid injections. Appellant underwent an additional thoracic magnetic resonance imaging 

(MRI) scan on June 25, 2013 which again demonstrated stable disc herniation at T9-10. The 

radiologist noted that the prior MRI scan identified the disc herniation at T8-9, but did not 

include the odontoid process, making it likely that the numbering of T8-9 was actually T9-10. 

Appellant also underwent a lumbar MRI scan on the same date which demonstrated an 

unremarkable lumbar spine with mild bilateral foraminal narrowing at L4-5. On July 15, 2013 

Dr. Rodway diagnosed thoracic strain with thoracic disc bulge. She continued to opine that 

appellant was partially disabled. 

Dr. Rodway referred appellant for a functional capacity evaluation (FCE) on 

February 7, 2014. No response was received. The evaluation was found to be conditionally 

valid, as the results represented the level that appellant perceived was his capacity, even though 

he could physically do more. Appellant was found capable of medium work, eight hours a day, 

sitting eight hours a day, standing four hours a day, and walking six to seven hours a day. He 

could lift above the shoulders 6 pounds frequently and 17 pounds occasionally, he could lift from 

the waist 41 pounds occasionally and 19 pounds frequently, and he could lift from the floor 30 

pounds occasionally. Appellant was able to push 44 pounds occasionally and pull 39 pounds 

occasionally. He could carry 62 pounds on both the right and left frequently, and carry 75 

pounds on the right and 70 pounds on the left occasionally. On March 7, 2014 Dr. Rodway 

returned appellant to work on March 7, 2014 with restrictions in keeping with the FCE. 

In a report dated July 11, 2014, Dr. Sami Moufawad, a Board-certified physiatrist and 

Board-certified in pain management, noted appellant’s history of injury on March 5, 2011, his 

work stoppage, and his medical treatment. Appellant reported lower back pain with no radiation. 

On examination Dr. Moufawad found positive skin roll test in the lower lumbar paraspinals with 

a few trigger points scattered in the lower lumbar area. Appellant exhibited lumbar range of 

motion of 40 degrees of forward flexion and 20 degrees of extension. He had minimal reversal 

of the lumbar lordosis with tight hip extensors bilaterally. Neurological examination of 

appellant’s lower limbs demonstrated pain inhibition at the hip girdle, hip flexors, and abductors 

bilateral with negative straight leg raising. Dr. Moufawad diagnosed thoracic disc displacement, 

lumbosacral sprain, and lumbar sprain. He reviewed appellant’s lumbar and thoracic MRI scans 

on August 15, 2014 and again diagnosed thoracic disc displacement, lumbosacral sprain, and 

lumbar sprain. 

On September 11, 2015 OWCP requested a supplemental report from Dr. Rodway. It 

referred appellant for a second opinion evaluation on October 1, 2015 with Dr. Richard 

Deerhake, a Board-certified orthopedic surgeon. In a report dated November 11, 2015, 

Dr. Deerhake reviewed the statement of accepted facts and described appellant’s history of 

injury. He noted appellant’s accepted conditions and medical treatment. Dr. Deerhake 

performed a physical examination and found that appellant walked with a normal gait pattern, 

walked on his heels and toes without difficulty, and was able to bend forward to touch his toes. 

Appellant could also perform a full squat. Dr. Deerhake found no paraspinal spasms or list, and 
4

normal back posture. He noted that appellant’s neurologic examination was normal in his lower 

extremities. Dr. Deerhake determined that appellant’s T8-9 disc herniation was no longer active 

or present to any significant degree and that appellant had normal functional abilities. He 

recommended a new FCE to determine current work restrictions. Dr. Deerhake noted that 

appellant had minimal residual symptoms related to his work injury, but no significant disability. 

He opined, “It would be my opinion there are not work-related conditions that are still present 

and active in this claimant. Appellant has reached maximum medical improvement in my 

opinion and for him to get back to work an FCE would be helpful in an effort to try to define if 

he has any limitations in terms of his activities.” Dr. Deerhake completed a work capacity 

evaluation indicating that appellant had no restrictions, but that he needed an FCE to determine 

his deficiencies. 

On December 17, 2015 OWCP provided appellant with a notice of proposed termination 

of his medical benefits and wage-loss compensation based on Dr. Deerhake’s November 11, 

2015 second opinion report. It allowed appellant 30 days for a response. No further response 

was received. 

By decision dated January 28, 2016, OWCP terminated appellant’s medical benefits and 

wage-loss compensation effective that date. It found that Dr. Deerhake’s November 11, 2015 

report was entitled to the weight of the medical evidence and established that appellant had no 

disability or medical residuals as a result of his accepted employment injury. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.4 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.5 Furthermore, 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 require further medical treatment.7

 

ANALYSIS 

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

medical benefits and wage-loss compensation effective January 28, 2016. 

OWCP accepted appellant’s claim for T8-9 disc herniation, as well as lumbar sprain. 

Appellant’s attending physicians, Drs. Rodway, Mikhail, and Moufawad supported his continued 

 4 Mohamed Yunis, 42 ECAB 325, 334 (1991). 

5 Id.

6 Furman G. Peake, 41 ECAB 361, 364 (1990). 

7 Id.
5

medical residuals and partial disability for work through August 15, 2014. OWCP then referred 

appellant for a second opinion evaluation with Dr. Deerhake on November 11, 2015. 

Dr. Deerhake provided an accurate history of injury and reviewed appellant’s medical 

records. He found that appellant’s thoracic disc herniation was no longer active or present “to 

any significant degree.” Dr. Deerhake did not discuss or address whether appellant continued to 

experience residuals of his accepted lumbar sprain. He did not respond to OWCP’s request for a 

diagnosis, but opined that appellant’s current residual symptoms were related to his work injury. 

Dr. Deerhake did not respond to OWCP’s queries regarding the extent of appellant’s disability 

for work, but indicated “there are not work-related conditions still present.” However, he further 

indicated that an FCE would be helpful to define if appellant had any limitations in terms of his 

activities. Finally, on the work capacity evaluation, Dr. Deerhake indicated that appellant had no 

restrictions, but again recommended an FCE to determine his deficiencies. 

The Board finds that Dr. Deerhake’s report is internally inconsistent and insufficient to 

establish that appellant has no medical residuals or disability due to his March 5, 2011 lifting 

incident. While Dr. Deerhake indicated that appellant’s accepted thoracic herniated disc was no 

longer active, he qualified this statement by adding “to any significant degree.” He further 

opined that appellant’s current residual symptoms were related to his work injury. Dr. Deerhake 

indicated both that appellant required a functional capacity evaluation to determine his work 

restrictions and opined that he had no disability from work. As there is no clear, well 

rationalized medical opinion evidence establishing that appellant’s accepted conditions had 

resolved without residuals requiring further medical treatment and that appellant had no 

disability for work due to his accepted conditions, OWCP has not met its burden of proof to 

terminate appellant’s medical benefits and wage-loss compensation benefits effective 

January 28, 2016. 

CONCLUSION 

The Board finds that OWCP has not met its burden of proof to terminate appellant’s 

medical benefits and wage-loss compensation effective January 28, 2016. 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 28, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: November 17, 2016 

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