United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.D., Appellant

and

U.S. POSTAL SERVICE, WEST MARKET 

STATION, Philadelphia, PA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-1600

Issued: April 25, 2019

Appearances: Case Submitted on the Record

Jason S. Lomax, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 20, 2018 appellant, through counsel, filed a timely appeal from a February 21, 

2018 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 to consider the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation and medical benefits, effective June 25, 2017, as she no longer had residuals or 

 

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

disability causally related to her accepted conditions; and (2) whether appellant has met her burden 

of proof to establish continuing disability or medical residuals causally related to her accepted 

employment injuries after June 25, 2017.

FACTUAL HISTORY

On December 1, 2011 appellant, then a 47-year-old carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on November 30, 2011 she sprained her left ankle when a 

porch collapsed underneath her as she was delivering mail while in the performance of duty. She

fell approximately eight feet through the porch and onto the basement floor, landing on her left 

side. Slabs of concrete fell upon her, trapping appellant in the basement. She stopped work on 

the date of injury. On January 19, 2012 OWCP accepted appellant’s claim for left ankle sprain, 

contusion of the right thigh, sprain of the right shoulder and upper arm, and as well as right superior 

glenoid labrum lesion. 

Appellant underwent a February 20, 2012 magnetic resonance imaging (MRI) scan of the 

right hip without contrast which demonstrated mild degenerative changes in both hips greater on 

the right. 

On April 16, 2012 OWCP expanded acceptance of appellant’s claim to include sprain of 

the right hip and thigh. It authorized payment of wage-loss compensation beginning January 16, 

2012, and on June 25, 2013 it placed her on the periodic rolls.

In a report dated July 12, 2012, appellant’s attending physician, Dr. Larry N. Bernstein, a 

Board-certified physiatrist, opined that she could not return to work due to residuals from her right 

hip injury.

On August 17, 2012 Dr. Tricia Beatty, an osteopath Board-certified in family practice and 

sports medicine, reviewed appellant’s August 8, 2012 MRI scan with contrast of the right hip and 

found a tear in the anterolateral glenoid labrum with femoroacetabular impingement and mild 

degenerative changes. She opined that appellant could not return to her date-of-injury position.

Appellant retired from the employing establishment on January 7, 2014. She underwent 

an additional right hip MRI scan on January 8, 2014 which demonstrated, that a portion of her

labrum was completely calcified or ossified. On March 25, 2014 Dr. Beatty recommended that 

appellant undergo a total right hip replacement. Later, on December 21, 2015, Dr. Bernstein also 

recommended that appellant undergo a total right hip replacement. 

In a November 18, 2016 report, Dr. Bernstein noted that appellant’s right hip pain had 

increased. He also noted that she had increasing left knee pain. Dr. Bernstein diagnosed right hip 

pain secondary to labral tear and degenerative joint disease following the fall through the porch. 

He recommended an additional MRI scan and a total hip arthroplasty. Dr. Bernstein also 

diagnosed left knee degenerative joint disease, which he attributed to increased stress as it was 

painful for appellant to bear weight on her right lower extremity. He noted that this condition 

might improve if she underwent the right hip replacement.
3

On December 5, 2016 OWCP referred appellant for a second opinion evaluation with

Dr. Steven J. Valentino, an osteopath and a Board-certified orthopedic surgeon. It provided him 

with a statement of accepted facts (SOAF) and a list of questions. 

On December 8, 2016 appellant underwent additional testing including a right hip magnetic 

resonance arthrogram (MRA) and right hip MRI scan which demonstrated incomplete tearing of 

the anterior/lateral labrum without frank labral detachment. 

In his January 11, 2017 report, Dr. Valentino noted appellant’s history of injury and

medical history. He reviewed the February 20, 2012 and January 8, 2014 MRI scans and noted 

that she had mild bilateral degenerative changes without acute abnormality. Dr. Valentino 

provided findings on physical examination and diagnosed resolved left ankle sprain, resolved 

contusion of the right thigh, resolved sprain of the shoulder and upper arm, resolved glenoid 

labrum lesion on the right, and resolved sprain of the right hip and thigh. He opined that appellant 

had a nonindustrial condition of degenerative osteoarthritis of the right hip which had progressed. 

Dr. Valentino concluded that her ongoing right hip condition had no causal connection to her 

November 30, 2011 employment injury. He also found that appellant had fully recovered from 

her accepted employment injuries. Dr. Valentino provided work restrictions based on her ongoing 

idiopathic right hip condition. 

On February 3, 2017 OWCP notified appellant that it proposed termination of her wageloss compensation and medical benefits. It afforded her 30 days to submit evidence or argument 

if she disagreed with the proposed termination. 

In a letter dated February 23, 2017, appellant asserted that she had continuing right hip pain 

since her November 30, 2011 employment injury. She noted that she planned to undergo a total 

right hip replacement previously recommended by Dr. Bernstein. Appellant also asserted that

Dr. Valentino failed to review all of her right hip diagnostic studies. 

On February 20, 2017 Dr. Bernstein reported that appellant continued to experience 

significant right hip pain and attributed this to her fall at work. He noted that she had not 

experienced hip symptoms prior to her November 30, 2011 employment injury. Dr. Bernstein 

found that the fall led to appellant’s right hip labral tear and subsequent accelerated hip arthritis. 

He further opined that her left knee discomfort was secondary to her gait deviation because of the 

right hip arthritis. Dr. Bernstein noted that Dr. Valentino only commented on one of appellant’s 

hip scans and had not discussed findings on the separate tests done with contrast. He concluded 

that she required a hip replacement and that this would not have been necessary had she not fallen 

on November 30, 3011.

On March 9, 2017 OWCP informed appellant of the conflict of medical opinion evidence 

between Drs. Valentino and Bernstein regarding the relationship of her current right hip condition 

to her November 30, 2011 employment injury.3In a letter dated March 17, 2017, appellant 

 

3 On March 13, 2017 OWCP referred appellant, a SOAF, and a list of questions to Dr. Menachem Meller, a Boardcertified orthopedic surgeon, to act as an impartial medical examiner (IME). In a letter dated March 17, 2017, 

appellant objected to the selection of Dr. Meller as the IME alleging he was biased. She provided a state court finding 

supporting her objection. On April 7, 2017 OWCP cancelled the examination with Dr. Meller.
4

requested to participate in the selection of the IME. On April 7, 2017 OWCP provided her with a 

list of three physicians and on April 21, 2017 she selected Dr. William Simon, a Board-certified 

orthopedic surgeon, as the IME. 

In his May 15, 2017 report, Dr. Simon reviewed the SOAF and medical records including 

diagnostic studies. He also performed a physical examination and noted that appellant reported 

pain on any rotation of the right hip. Dr. Simon noted that his findings on examination had 

indicated that her hip pain was referred from her lumbar spine rather than originating in her right 

hip. He reported depressed knee reflexes, decreased power in appellant’s extensor halluces longus, 

and her anterior tibial muscles on the right, and decreased sensation on the inner aspect of her right 

calf, plus moderately severe tenderness in her right lumbosacral angle. Dr. Simon found that all 

of her November 30, 2011 soft tissue injuries had healed. He concluded that appellant, therefore,

had no residuals from any of the diagnosed conditions accepted by OWCP. Dr. Simon further 

found that her current conditions of mild adhesive capsulitis of the right shoulder, mild 

osteoarthritis of both hips, and right lumbar radiculopathy due to discogenic abnormalities were 

totally unrelated to the accepted diagnoses from her 2011 employment injury. He determined that 

appellant could not return to work, but that her disability was not due to her accepted employment 

injuries.

On May 22, 2017 Dr. Beatty examined appellant due to right hip pain. She attributed 

appellant’s right hip pain to her work injury. Dr. Beatty reviewed x-rays and found progressive 

degenerative changes including spurring along the femoral head and neck junction as well as 

narrowing of the femoroacetabular joint space. She also examined the December 8, 2016 right hip 

MRA and found incomplete tearing of the anterolateral labrum. Dr. Beatty diagnosed degenerative 

joint disease of the right hip with degenerative labral tear. She opined that appellant had severe 

pain in her right hip from her work-related injury and recommended hip replacement surgery.

By decision dated June 5, 2017, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective June 25, 2017. It found that Dr. Simon’s report was entitled to the 

special weight of the medical opinion evidence and established that she had no ongoing disability 

or medical residuals due to her November 30, 2011 employment injury. 

On June 28, 2017 appellant through counsel, requested an oral hearing before an OWCP 

hearing representative. 

On June 27, 2017 Dr. Beatty diagnosed degenerative joint disease of the right hip and 

performed an intraarticular cortisone injection. 

During the oral hearing, held on December 8, 2017, appellant testified that she continued 

to experience right shoulder, right hip, and left knee symptoms. She attributed her left knee 

symptoms to protecting her right hip.

On January 8, 2018 appellant provided a copy of a June 16, 2017 lumbar MRI scan. On 

December 14, 2017 Dr. Bernstein reported no evidence of lumbar radiculopathy clinically or on 

imaging studies. He noted that the MRAs of August 12, 2012 and December 8, 2016 demonstrated 

right hip labral tear. Dr. Bernstein noted that appellant’s initial MRI scan showed only mild 

degenerative changes in the right hip which rapidly progressed. He opined that the progression of 
5

degenerative changes was much faster than would be normally expected with usual use and that 

she had performed a reduced level of activity. Dr. Bernstein concluded that appellant’s right hip 

symptoms were the direct result of her November 30, 2011 employment injury.

By decision dated February 21, 2018, OWCP’s hearing representative affirmed OWCP’s 

June 5, 2017 termination decision and found that appellant had not established continuing 

disability or medical residuals causally related to her November 30, 2011 employment injuries

after June 25, 2017.

LEGAL PRECEDENT -- ISSUE 1

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

modification or termination of benefits.4 It may not terminate compensation without establishing 

either that the disability has ceased or that it is no longer related to the employment.5 OWCP’s 

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based 

on a proper factual and medical background.6

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement to compensation for disability.7 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.8

Section 8123(a) of FECA provides that if there is disagreement between the physician 

making the examination for OWCP and the employee’s physician, the Secretary shall appoint a 

third physician, known as a referee physician or impartial medical specialist, who shall make an 

examination.9 This is called a referee examination and OWCP will select a physician who is 

qualified in the appropriate specialty and who has no prior connection with the case.10 Where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial specialist for the purpose of resolving conflict, the opinion of such specialist, if 

 

4 D.M., Docket No. 17-1052 (issued January 24, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L.Stewart, 54 ECAB 824 (2003); Curtis Hall, 45 ECAB 316 (1994).

5 D.M., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 

37 ECAB 541 (1986).

6 D.P., Docket No. 18-0038 (issued January 4, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

7 R.P., Docket No. 17-1133 (issued January 18, 2018); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 

677 (2005); A.P., Docket No. 08-1822 (issued August 5, 2009); Furman G. Peake, 41 ECAB 361, 364 (1990).

8 See R.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); Furman G. 

Peake, id.

9 5 U.S.C. § 8123(a); see R.P., supra note 7; R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 

08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

10 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).
6

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.11

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits, effective June 25, 2017, as she no longer had residuals or disability causally 

related to her accepted conditions.

OWCP accepted appellant’s November 30, 2011 traumatic injury claim for left ankle 

sprain, contusion of the right thigh, sprain of the right shoulder and upper arm, right superior 

glenoid labrum lesion, and sprain of the right hip and thigh. It paid her wage-loss compensation 

for total disability beginning January 16, 2012. OWCP properly determined that a conflict in 

medical opinion arose between Dr. Bernstein, appellant’s attending physician, and Dr. Valentino, 

an OWCP physician, regarding her ongoing medical residuals and the extent of her disability due 

to her employment injuries. It referred her to Dr. Simon for an impartial medical examination and 

provided him with a series of questions regarding her ongoing residuals, if any, and her need for 

treatment and her ability to return to employment.

Where there exist opposing medical reports of virtually equal weight and rationale and the 

case is referred to an impartial medical specialist for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.12 Dr. Simon found that appellant’s current conditions 

of mild adhesive capsulitis of the right shoulder, mild osteoarthritis of both hips, and right lumbar 

radiculopathy due to discogenic abnormalities were totally unrelated to the accepted diagnoses 

from her 2011 employment injury. He further determined that she could not return to work, but 

that her disability was not due to her accepted employment injuries. Dr. Simon accurately 

summarized the relevant medical evidence, provided detailed findings on examination, and 

reached conclusions about appellant’s condition which comported with his findings. The Board 

finds that his opinion is well rationalized and based on a proper factual and medical history such 

that his opinion is entitled to special weight in establishing that she had no ongoing employmentrelated disability or medical residuals.

The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss 

compensation and medical benefits is insufficient to overcome the special weight accorded to

Dr. Simon. Dr. Beatty continued to attribute appellant’s degenerative joint disease of the right hip 

with degenerative labral tear to her work injury. She, however, did not provide a well-rationalized

explanation of how appellant’s November 30, 2011 work injury caused or contributed to 

appellant’s current right hip condition. A medical opinion not fortified by medical rationale is of 

little probative value.

13

 

11 See R.P., supra note 7; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

12 Id.

13 D.P., supra note 6; C.S., Docket No. 18-0952 (issued October 23, 2018).
7

The Board, therefore, finds that OWCP properly terminated appellant’s wage-loss 

compensation and medical benefits, effective June 25, 2017.

LEGAL PRECEDENT -- ISSUE 2

Once OWCP properly terminates a claimant’s compensation benefits, he or she has the 

burden of proof to establish continuing disability or residuals after that date causally related to the 

accepted injury.14 To establish causal relationship between the condition as well as any attendant 

disability claimed and the employment injury, an employee must submit rationalized medical 

evidence based on a complete medical and factual background, supporting such a causal 

relationship. A claimant must establish by the weight of the reliable, probative, and substantial 

evidence that he or she had an employment-related disability or residuals of his or her accepted 

condition which continued after termination of compensation benefits.

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to establish continuing 

disability or medical residuals after June 25, 2017 causally related to her accepted conditions.

Following the termination of her wage-loss compensation and medical benefits, appellant 

submitted a December 14, 2017 report, from Dr. Bernstein, who disagreed with Dr. Simon 

regarding her complaint of back pain radiating into her right hip. Dr. Bernstein noted that her

initial MRI scan showed only mild degenerative changes in the right hip which rapidly progressed. 

He opined that the progression of appellant’s right hip degenerative changes was much faster than 

would normally have been expected, even with usual use, and that she had performed a reduced 

level of activity. Dr. Bernstein concluded that her right hip symptoms were the direct result of her 

November 30, 2011 employment injury. While his reports are generally supportive of continuing 

employment-related residuals and disability, they do not provide adequate medical rationale 

explaining how the diagnosed conditions or resultant disability were caused by the employment 

injury.15 As noted above, medical conclusions unsupported by rationale are of little probative 

value.16 The Board also notes that Dr. Bernstein had been on one side of the conflict in the medical 

opinion that Dr. Simon, the impartial specialist, resolved and, therefore, his reports are insufficient 

to overcome the special weight accorded the impartial specialist or to create a new medical 

conflict.17

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 and 20 C.F.R. 

§§ 10.605 through 10.607.

 

14 D.P., supra note 6; Daniel F. O Donnell, Jr., 54 ECAB 456 (2003).

15 D.P., supra note 6; Y.D., Docket No. 16-1896 (issued February 10, 2017).

16 Supra note 13.

17 D.M., supra note 4; Nancy Keenan, 56 ECAB 687 (2005); Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. 

Warren, 51 ECAB 413 (2000). 
8

CONCLUSION

The Board finds that OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits, effective June 25, 2017. The Board further finds that she has not met her burden 

of proof to establish any continuing disability or medical residuals causally related to her accepted 

employment injuries after June 25, 2017.

ORDER

IT IS HEREBY ORDERED THAT the February 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board