United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Melbourne, FL, Employer 

__________________________________________ 

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Docket No. 15-1467 

Issued: March 8, 2016 

Appearances: Case Submitted on the Record

Ronald S. Webster, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 29, 2015 appellant, through counsel, filed a timely appeal from a March 2, 2015 

merit decision of the Office of Workers’ Compensation Programs (OWCP).1

 Pursuant to the 

Federal Employees’ Compensation Act2

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

has jurisdiction over the merits of this case.3

 

                                                             1

 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). A hearing was scheduled for January 12, 2016 at 11:00 a.m. Notice of Oral Argument, Docket No. 15-

1467 (issued October 20, 2015). By letter received on November 18, 2015, appellant’s attorney requested that the 

oral argument be canceled. On December 1, 2015 the Clerk of the Appellate Boards canceled the scheduled oral 

argument. 

2

 5 U.S.C. § 8101 et seq. 

3

 The Board notes that, following the issuance of the March 2, 2015 OWCP decision, appellant submitted new 

evidence to OWCP. The Board is precluded from reviewing evidence which was not before OWCP at the time it 

issued its final decision. See 20 C.F.R. § 501.2(c)(1). 
2 

ISSUES 

The issues are: (1) whether OWCP properly terminated appellant’s compensation 

benefits effective May 4, 2014 as her accepted conditions had ceased without residuals; and 

(2) whether appellant met her burden of proof to establish any continuing employment-related 

residuals or disability. 

On appeal, counsel contends that the May 1, 2013 report from Dr. Ian Fries, a Boardcertified orthopedic surgeon serving as OWCP’s impartial medical examiner, lacked probative 

value and was insufficient to terminate appellant’s compensation benefits. He argues that the 

medical evidence of record is sufficient to reinstate appellant’s compensation benefits and 

requests that the Board reverse OWCP’s decision. 

FACTUAL HISTORY 

On May 24, 2000 appellant, a 56-year-old rural carrier associate, filed a traumatic injury 

claim (Form CA-1) for a severe back injury sustained at work on October 19, 1998. OWCP 

accepted the claim for a lumbar sprain and acquired spondylolisthesis.4

 Appellant stopped work 

on October 19, 1998 and received intermittent wage-loss compensation beginning that date. She 

was placed on the periodic compensation rolls for total disability beginning September 8, 2002.5 

OWCP subsequently referred appellant to Dr. Richard Steinfeld, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her 

employment-related conditions. In his November 19, 2012 report, Dr. Steinfeld reviewed a 

statement of accepted facts, history of the injury, and the medical evidence of record. He 

conducted a physical examination and found no masses or lesions in the lumbar spine. Appellant 

was palpably nontender about the lumbar spine and exhibited active forward flexion to 80 

degrees, extension to zero, and lateral bend to five degrees bilaterally. Dr. Steinfeld diagnosed 

chronic low back pain and lumbar radiculopathy. He noted that appellant revealed some limited 

range of motion involving her lumbar spine and seemed extremely emotional, almost to the point 

of depression, during her evaluation. Dr. Steinfeld opined that appellant’s accepted lumbar 

sprain had resolved. He explained that her lumbar spondylolisthesis “has likely not resolved as 

this is an anatomic abnormality that may develop over time with degenerative conditions.” 

Dr. Steinfeld concluded that appellant had reached maximum medical improvement and released 

her to full-time work with lifting up to 70 pounds. 

                                                             4

 The record before the Board also includes some records for an occupational injury sustained on or about 

October 21, 1996, which OWCP had accepted under OWCP File No. xxxxxx644 for lumbar strain, sacroiliac strain, 

and myofascial pain syndrome. Appellant returned to work about six weeks after the injury. The current claim on 

appeal, OWCP File No. xxxxxx553, has not been combined with the October 21, 1996 occupational disease claim, 

OWCP File No. xxxxxx644. 

5

 By decision dated May 25, 2004, OWCP made a preliminary determination that appellant was overpaid in the 

amount of $249.90 because she had been reimbursed for pharmacy services in error, and she was at fault in the 

creation of the overpayment because she accepted a payment that she knew or reasonably should have known was 

incorrect. 
3 

On January 3, 2013 the employing establishment offered appellant a limited-duty job as a 

modified rural carrier associate with the following restrictions: lifting up to 25 pounds; pushing 

and pulling up to 25 pounds; standing and sitting for eight hours per day, intermittently. 

By letter dated January 18, 2013, OWCP advised appellant that the modified rural carrier 

associate position had been found to be suitable and that it conformed to the work limitations 

provided by Dr. Steinfeld in his November 19, 2012 report. It allowed her 30 days to accept the 

position or provide her reasons for refusal. 

Appellant submitted a narrative statement arguing that the job offer was not suitable and 

reports dated January 7 through March 8, 2013 from Dr. Gary Weiss, a Board-certified 

neurologist, who diagnosed continued low back pain to the right lower extremity, herniated 

nucleus pulposus (HNP) at L3-5, and chronic pain syndrome. Dr. Weiss opined that appellant 

continued to suffer residuals from her October 19, 1998 work injury and was permanently totally 

disabled from work based on her complaints, symptomatologies, and neurological examination. 

OWCP found a conflict in the medical evidence and referred appellant to Dr. Fries for an 

impartial medical examination to resolve the conflict in medical opinion between Drs. Weiss and 

Steinfeld on the issue of whether she continued to have any disability or residuals as a result of 

the accepted employment conditions. In his May 1, 2013 report, Dr. Fries reviewed a statement 

of accepted facts, history of the injury, and the medical evidence of record. He conducted a 

physical examination and found some pinch tenderness at about the mid-lumbar spine area, but 

no skin sensitivity nor deep tenderness any place over her low back, pelvis, or buttocks. 

Appellant preferred to stand in a 20-degree flexed position. Spinal extension was 0 degrees and 

forward trunk flexion was to 60 degrees with heavy support on both hands. Motion was almost 

completely at her hips and the lumbar spine remained immobile and straight without normal 

lordosis. Right and left bending was limited to about 10 degrees each, with some pain in the 

same areas, but also the lateral left thigh to ankle. There were no increased symptoms with 

vertex compression nor pelvic rotation. Dr. Fries found that appellant’s spine remained quite flat 

with all motions and there were no palpable step-offs. Appellant had at least six small transverse 

well-healed surgical endoscopic incisions all to the left of her low back, which were not locally 

tender. Dr. Fries asserted that while OWCP had accepted the diagnosis of acquired 

spondylolisthesis, only one treating physician mentioned this condition and there was no 

indication on any imaging that confirmed its existence. He further explained that acquired 

spondylolisthesis was a degenerative condition, not a traumatic injury. Dr. Fries found that the 

May 1, 1997 magnetic resonance imaging (MRI) scan of the lumbar spine showed only minor 

degenerative findings, but no evidence of trauma or spondylolisthesis. Moreover, a 

December 21, 1998 MRI scan of the lumbar spine showed mild multilevel degeneration had 

advanced, but no evidence specific for trauma, no findings requiring surgery, no neural element 

compression, and no mention of spondylolisthesis. Regarding the accepted lumbar sprain, 

Dr. Fries asserted that complaints of pain and loss of motion were not credible evidence of 

residuals from a spinal or sacroiliac sprain or strain more than a decade earlier. He concluded 

that appellant had no residuals from the October 19, 1998 employment injury and had reached 

maximum medical improvement. Dr. Fries released appellant to work without restrictions. 

In an August 29, 2013 letter, OWCP notified appellant that it proposed to terminate her 

medical and wage-loss compensation benefits on the basis that her accepted conditions had 
4 

ceased without residuals, relying on Dr. Fries’ May 1, 2013 report. It afforded her 30 days to 

submit additional evidence or argument in disagreement with the proposed action. 

Appellant submitted new MRI scans of the lumbar spine dated September 18, 2013 and 

January 20, 2014 which revealed HNP with stenosis and spondylolisthesis at L4-5 causing severe 

narrowing at this level, as well as HNP with stenosis at T12-L3. There was also a fusion of L3 

and L4 and a mild posterior spondylolisthesis of L5 compared to L4. 

In reports dated September 19, 2013 through March 27, 2014, Dr. Weiss diagnosed 

memory loss, severe stenosis, and spondylolisthesis at L4-5 with HNP at T12-L3 with pain into 

the right lower extremity. On October 6, 2013 Dr. Weiss asserted that it was clear to anyone 

looking at an MRI scan of appellant’s lumbar spine, that it alone made her permanently totally 

disabled for work. He opined that her lumbar spine was too severely damaged to recommend 

surgery unless she could no longer walk even with a cane or a walker. 

By decision dated April 21, 2014, OWCP terminated appellant’s compensation benefits 

effective May 4, 2014. It found the weight of the evidence was represented by Dr. Fries. 

Appellant’s counsel requested an oral hearing before an OWCP hearing representative 

and submitted reports dated March 25 and December 19, 2014 from Dr. Weiss who reiterated his 

diagnoses and opinions. Appellant further submitted reports dated March 10 and April 23, 2014 

from a nurse practitioner. 

A telephonic hearing was held before an OWCP hearing representative on 

December 10, 2014. 

By decision dated March 2, 2015, the OWCP hearing representative affirmed the 

April 21, 2014 termination decision, finding that the weight of the medical evidence was 

represented by Dr. Fries. He further found that appellant failed to establish any continuing 

employment-related residuals or disability causally related to her accepted injuries. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.6

 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.7

 OWCP’s burden of proof includes the necessity of furnishing 

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

 

                                                             6 See S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

7 See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

8 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 
5 

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

entitlement for disability.9

 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.10 

Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.11 Where a case is 

referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background must be given special weight.12 

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for a lumbar sprain and acquired spondylolisthesis. It 

terminated her medical and wage-loss compensation benefits because the accepted employmentrelated conditions had resolved without residuals based on the opinion of the impartial medical 

examiner, Dr. Fries. It is OWCP that bears the burden to justify modification or termination of 

benefits.13 

On appeal, appellant’s counsel contends that the report from Dr. Fries lacked probative 

value and was insufficient to terminate appellant’s compensation benefits. He argues that the 

medical evidence of record is sufficient to reinstate appellant’s compensation benefits and 

requests that the Board reverse OWCP’s decision. 

OWCP based its decision to terminate appellant’s benefits on a May 1, 2013 report from 

Dr. Fries, the impartial medical examiner, who conducted a physical examination and reviewed 

appellant’s medical history. Dr. Fries concluded that appellant had no residuals of her accepted 

conditions and had reached maximum medical improvement as of the date of his examination. 

Although he thoroughly reviewed the medical evidence, Dr. Fries clearly was not provided the 

complete record. He noted the lack of medical records surrounding the original injury, the lack 

of any diagnostic tests reflecting spondylolisthesis, the lack of evidence surrounding two motor 

vehicle accidents (in 2000 and 2002) which were sufficient to warrant surgeries and the lack of 

evidence regarding two left hip replacements.14

                                                             9 See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

10 See James F. Weikel, 54 ECAB 660 (2003). 

11 5 U.S.C. § 8123(a). See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006). 

12 See V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 

215 (1994). 

13 See Curtis Hall, 45 ECAB 316 (1994); see also K.B., Docket No. 15-11 (issued April 7, 2015). 

14 Medical opinions based on an incomplete history are of little probative value. Leonard J. O’Keefe, 14 ECAB 

42, 48 (1962). 
6 

After Dr. Fries’ report, appellant had provided MRI scans of the lumbar spine dated 

September 18, 2013 and January 20, 2014 which revealed HNP with stenosis and 

spondylolisthesis at L4-5 causing severe narrowing at this level, as well as HNP with stenosis at 

T12-L3. There was also a fusion of L3 and L4 and a mild posterior spondylolisthesis of L5 

compared to L4. In reports dated September 19, 2013 through December 19, 2014, Dr. Weiss 

diagnosed severe stenosis and spondylolisthesis at L4-5 with HNP at T12-L3 with pain into the 

right lower extremity. On October 6, 2013 he asserted that it was clear to anyone looking at an 

MRI scan of appellant’s lumbar spine that her lumbar spine alone made her permanently totally 

disabled for work. 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation benefits because it failed to provide a complete medical record to Dr. Fries and 

failed to provide the newly received MRI scans to Dr. Fries to obtain a supplemental report. The 

Board notes that the reports and treatment records of Dr. Weiss were of record prior to the 

April 21, 2014 termination decision. The Board finds that where OWCP received the reports 

from Dr. Weiss, it should have submitted them to Dr. Fries, the impartial medical examiner, and 

requested a supplemental report before issuing a final decision on appellant’s entitlement to 

medical and wage-loss compensation. 

The impartial medical examiner’s report must actually fulfill the purpose for which it was 

intended, it must resolve the conflict in medical opinion.15 OWCP should ensure that the report 

is comprehensive, clear, and definite and that it is based on the entire medical record and current 

information.16 It is its responsibility to secure a supplemental report from the impartial medical 

examiner to correct any defects.17 As OWCP failed to adequately resolve the conflict in medical 

opinion, the Board finds that it did not meet its burden of proof to terminate appellant’s 

compensation benefits.18 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation benefits. 

                                                             15 See M.G., Docket No 14-1361 (issued December 8, 2014); Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11d(2) (September 2010). 

16 Id. See also Billie M. Gentry, 38 ECAB 498 (1987). 

17 Id. 

18 In light of the Board’s disposition of the termination issue, the second issue of whether appellant met her 

burden of proof to establish any continuing employment-related residuals or disability is moot. 
7 

ORDER 

IT IS HEREBY ORDERED THAT the March 2, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: March 8, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board