United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.O., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Duluth, GA, Employer 

__________________________________________ 

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Docket No. 16-1905 

Issued: May 25, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 28, 2016 appellant, through counsel, filed a timely appeal from an 

August 18, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).

 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

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

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s medical 

benefits effective October 16, 2015. 

On appeal appellant, through counsel, contends that the August 18, 2016 decision was 

contrary to fact and law. 

FACTUAL HISTORY 

On December 3, 2014 appellant, then a 50-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she sprained a muscle in her lower left back while lifting a tub 

of parcels. She stopped work on December 3, 2014. 

On the same date appellant received treatment from Dr. Son Thanh Nguyen, a Boardcertified internist, who noted that three hours prior to her visit, appellant had been pulling a 50-

pound container at work and getting ready to lift it when she felt a shooting pain that started in 

her middle back and went up her upper back. He noted that the pain was more on appellant’s left 

side. Dr. Nguyen assessed back pain, postural. 

On December 5, 2014 Dr. Erin London, a family practitioner and an associate of 

Dr. Nguyen’s, noted that appellant’s back pain had not improved, and diagnosed thoracic strain. 

She released appellant to return to a modified work program for five days with seated work only 

and no bending or extended reaching. 

In a December 10, 2014 report, Dr. Jeffrey S. Reed, an osteopath, diagnosed thoracic 

strain and back pain postural. He prescribed physical therapy for range of motion and 

strengthening/stretching exercises. On December 18, 2014 Dr. Nguyen reiterated his diagnosis 

of thoracic strain and back pain postural and returned her to light-duty work with a lifting 

restriction of 10 pounds. 

 2

 5 U.S.C. § 8101 et seq. 

3

 The issue on appeal only concerns the termination of appellant’s medical benefits. Appellant’s wage-loss 

benefits were denied in a separate decision, which is not the subject of this appeal. In a decision dated July 7, 2015, 

OWCP denied appellant’s claims for disability compensation for the period from March 7 through June 26, 2015 

and continuing. It determined that the evidence was insufficient to support that appellant’s disability due to her 

employment as the medical evidence showed that the disability was related to her nonwork medical conditions. On 

July 10, 2015 appellant, through counsel, requested a telephonic hearing before an OWCP hearing representative 

regarding the payment of appellant’s wage-loss benefits. A hearing was held on March 21, 2016 regarding the 

termination of appellant’s wage-loss benefits. By decision dated June 1, 2016, the hearing representative affirmed 

the July 7, 2015 decision denying wage-loss compensation, finding that the record was devoid of rationalized 

medical opinion evidence linking appellant’s disability from work to the accepted work injury. Appellant has not 

appealed this decision. 
3

In a December 31, 2014 report, Dr. Westley A. Bailey, a Board-certified family 

practitioner, noted that appellant indicated that she injured her back on December 3, 2014 while 

lifting a tub of parcels over 50 pounds. He diagnosed lumbar strain and reported multilevel 

lumbar disc protrusions. Dr. Bailey also noted a suspicious area on her lung from her initial 

diagnostic tests, and he advised appellant to follow up with pulmonary specialists regarding that 

matter. 

On December 31, 2014 OWCP accepted appellant’s claim for sprain of the thoracic 

region of the back. It paid her medical bills with regard to this injury. 

On February 5, 2015 the employing establishment controverted the claim, and submitted 

medical evidence which had come to its attention from the Gwinnett Medical Center. This 

evidence included progress notes from the Gwinnett Medical Center dated January 21 and 23, 

2015, signed by Dr. Tuan Bui, a Board-certified orthopedic surgeon. In the January 21, 2015 

report, Dr. Bui noted that appellant had multiple compression fractures of unknown etiology. He 

stated, “Apparently, [one] month ago she had an MRI [magnetic resonance imaging] [scan] the 

fractures were not there.” Dr. Bui stated that for better evaluation of the fracture pattern and 

acuity he would obtain a new MRI scan, and until then, she would be treated conservatively. In 

the January 23, 2015 progress note, Dr. Bui noted that appellant had an onset of back pain with 

fractures and a pathology of multiple vertebral segments including T5, T8, T9, T11, T12, and L1. 

He noted that there was concern for pathologic fractures and possible oncologic source of 

etiology. Dr. Bui noted that from an orthopedic spine standpoint, treatment remained the same. 

He did not recommend any type of surgical intervention at that time, but rather recommended a 

consultation with an oncologist. 

On February 5, 2015 OWCP also received additional medical evidence. In a January 20, 

2015 report, Dr. Jaymin R. Patel, a Board-certified radiologist, found no aortic dissection, 

generalized moderate-to-severe osteopenia throughout the visualized bony structures, and 

multiple compression fractures of lower thoracic and upper lumbar and bibasilar predominant 

linear infiltrates that may represent atelectasis scarring or less likely pneumonia. 

A January 21, 2015 radiology report by Dr. Joseph Finley, a Board-certified radiologist, 

found that an upright portable film of the chest demonstrated normal heart and vascularity. 

Dr. Finley noted a small infiltrate left infrahilar area overlapping the hemidiaphragm laterally. 

Dr. Aurora J. Peacock, a Board-certified radiologist, interpreted a January 22, 2015 MRI 

scan as evincing: (1) diffusely abnormal marrow signal with permeative T1 hypointense/STIR 

hyperintense lytic lesions throughout the visualized skeleton, and differential considerations 

including multiple myeloma or diffuse metastatic disease; (2) multiple chronic appearing 

thoracolumbar compression fractures of T5, T8, T9, T11, T12, and L1; and (3) tiny bilateral 

pleural effusions. 

A February 5, 2015 radiologic consult was interpreted by Dr. Patel as showing no aortic 

dissection. 

In a February 25, 2015 report, Dr. Bui summarized his treatment of appellant. He noted 

that she had returned for follow up of multiple thoracic and lumbar compression fractures. 
4

Dr. Bui noted that appellant initially injured herself at work, however, during the treatment of her 

spine injury, appellant presented with significant pain and had been admitted to the hospital. An 

MRI scan was performed that confirmed multiple new compression fractures of the thoracic and 

lumbar area, and there was a concern for malignancy and pathology. Dr. Bui noted that a biopsy 

confirmed multiple myeloma. He noted that they were treating the fractures nonoperatively with 

a brace. Dr. Bui opined that appellant should not work for the next three months, and was 

seeking treatment with chemotherapy. 

Appellant filed claims for wage-loss compensation CA-7 forms for consecutive periods 

beginning March 7, 2015. 

In a May 27, 2015 report, Dr. Bui indicated that appellant’s initial injury at work was 

likely coincidental, and that she had now reached maximal medical improvement. He did note 

that appellant still had muscular complaints. Dr. Bui noted that it was difficult to distinguish 

whether or not this was from the original injury or from the new pathologic lesions in her spine. 

He recommended physical therapy and that appellant continue wearing a back brace. Dr. Bui 

also recommended that appellant should not work secondary to her multiple myeloma 

compression fractures. 

On September 15, 2015 OWCP proposed terminating appellant’s medical benefits as the 

medical evidence reflected that appellant no longer had any remaining residuals of her accepted 

work-related medical condition. 

By decision dated October 16, 2015, OWCP finalized the termination of appellant’s 

medical benefits. It indicated that Dr. Bui found that appellant was at maximum medical 

improvement as it related to her accepted back sprain and that her disability was related to her 

multiple myeloma (bone cancer). OWCP also noted that on January 2, 2015 Dr. Bailey provided 

no opinion concerning the work injury. It concluded that appellant’s medical benefits were 

terminated effective that date as the medical evidence established that she no longer had any 

remaining residuals of her accepted work-related medical condition. 

On October 26, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative regarding the termination of her medical benefits. 

In a medical report dated June 7, 2016, Dr. Bui noted that appellant was initially seen at 

Gwinnett Medical Center hospital on January 21, 2015 and that he was asked to consult for 

severe back pain. He noted that appellant initially injured herself at work on December 3, 2014 

after lifting a heavy object. Appellant was treated, but her symptoms were not improving, so an 

MRI scan was ordered. The MRI scan subsequently showed no abnormalities aside from some 

bulging discs. Dr. Bui indicated that on examination appellant had complaints of paraspinal pain 

in the thoracic region as well as pain with any thoracic movement. He noted no complaints of 

radicular pain or numbness. Dr. Bui noted that appellant’s diagnoses included both compression 

fractures as well as a paraspinal muscle spasm which was present prior to the diagnosis of the 

compression factures. He opined that the paraspinal muscle spasm and pain could be directly 

related to the lifting injury at work based on appellant’s presentation and history. Dr. Bui noted 

that the compression fractures will certainly cause additional thoracic and lumbar pain, but he 

also noted that her pain was present prior to this diagnosis as indicated by her essentially normal 
5

MRI scan as compared to the subsequent MRI scan at the hospital. He concluded that one of the 

causes of her pain was certainly the work-related injury. 

A hearing was held on June 13, 2016, regarding the termination of appellant’s medical 

benefits. Appellant testified that she was not working and was receiving social security 

disability benefits. She stated that she had worked for the employing establishment for 12 years. 

Appellant testified that she was not getting any treatment for her muscle spasm and was not 

getting chemotherapy because her doctor would not accept insurance. 

By decision dated August 18, 2016, the hearing representative affirmed OWCP’s 

October 16, 2015 termination of appellant’s medical benefits because the record of evidence did 

not contain rationalized medical evidence relating any further need for medical care to the 

accepted work injury. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.4

 The right to medical benefits for an accepted condition 

is not limited to the period of entitlement to compensation for disability.5

 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.6

ANALYSIS 

On December 31, 2014 OWCP accepted appellant’s claim for sprain of the thoracic 

region of the back. By decision dated October 16, 2015, it terminated medical benefits because 

appellant had no more residuals of her accepted sprain of the thoracic region of the back. 

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

medical benefits. 

Dr. Bui noted that appellant had reached maximum medical improvement from the 

employment-accepted conditions as of his May 27, 2015 report. He noted that appellant had 

multiple myeloma compression fractures. Dr. Bui opined that it did appear that the initial injury 

at work was likely coincidental, but that appellant still had muscular complaints. Dr. Bui opined 

that it was difficult to distinguish whether these complaints were from the employment injury or 

from the new pathologic lesions in her spine. In fact, he noted that one of the causes of 

appellant’s pain was certainly the employment injury and he referred appellant for physical 

therapy. The medical reports of record from Dr. Bui are insufficient to establish that appellant’s 

accepted thoracic sprain had resolved.7

 4 Curtis Hall, 45 ECAB 316 (1994). 

5 Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997). 

6 Calvin S. Mays, 39 ECAB 993 (1988). 

7 Supra note 6. 
6

OWCP bears the burden of proof to provide medical evidence demonstrating that 

appellant has no residuals of the accepted work-related injury.8

The record reflects that much of appellant’s back pain is due to another more serious 

condition. Dr. Bui, however, did find that one of the causes of appellant’s pain was certainly the 

employment injury. As the medical evidence establishes that appellant continues to have some 

residuals attributable to the accepted thoracic sprain, the Board finds that OWCP failed to meet 

its burden of proof to terminate medical benefits. 

CONCLUSION 

The Board finds that OWCP failed to meet its burden of proof to terminate medical 

benefits effective October 16, 2015. 

ORDER 

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

Compensation Programs dated August 18, 2016 is reversed, and the case is remanded to OWCP 

for further action consistent with this opinion. 

Issued: May 25, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 Id.