United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New Orleans, LA, Employer 

__________________________________________ 

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Docket No. 16-1677 

Issued: July 6, 2017 

Appearances: Case Submitted on the Record

Gay Snyder, Esq., for the appellant1

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 August 16, 2016 appellant, through counsel, filed a timely appeal from a June 7, 2016 

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 over the merits of this case.3

 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. 

3

 Counsel requested an oral argument before the Board. By order dated January 12, 2017, the Board exercised its 

discretion and denied the request as the arguments on appeal could be adequately addressed in a decision based on 

review of the case record. Order Denying Oral Argument, Docket No. 16-1677 (issued January 12, 2017). 
2

ISSUES 

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

wage-loss compensation and medical benefits, effective May 6, 2012; and (2) whether appellant 

has established continuing employment-related disability after May 6, 2012 causally related to 

the October 14, 2010 employment injury. 

FACTUAL HISTORY 

On November 17, 2010 appellant, then a 61-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that she sustained injuries when lifting heavy buckets in the performance 

of duty on October 14, 2010. The reverse side of the claim form indicated that she stopped work 

on October 29, 2010. On December 7, 2010 OWCP accepted the claim for sprains of the neck, 

thoracic, and lumbar spine. Appellant began receiving wage-loss compensation and was placed 

on the periodic compensation roll as of February 13, 2011. 

OWCP referred appellant to Dr. Douglas Lurie, a Board-certified orthopedic surgeon, for 

a second opinion examination to determine appellant’s work capacity. In a report dated April 25, 

2011, Dr. Lurie provided a history and results on examination. He opined that the accepted 

sprains had resolved. Dr. Lurie wrote that any residual symptoms were most likely the result of 

preexisting degenerative changes in the back, which were likely aggravated by the lifting of 

heavy buckets. He indicated that appellant should have a functional capacity evaluation (FCE) 

prior to returning to work. The record indicates that appellant underwent an FCE on 

June 8, 2011. 

In a June 9, 2011 report, Dr. Lurie reported that appellant was capable of full-time 

sedentary work, based on the FCE. He noted that appellant was “self-limited” on 38 percent of 

the 16 tasks, and the FCE report noted that, if self-limiting exceeded 20 percent, then 

psychosocial and motivating factors were affecting the result. In a July 5, 2011 report, Dr. Lurie 

wrote that he did not feel he could “trump” the FCE and released appellant back to full-duty 

work. 

OWCP referred appellant for another second opinion examination. In a report dated 

August 15, 2011, Dr. Christopher Cenac, Sr., a Board-certified orthopedic surgeon, summarized 

appellant’s medical history and results on physical examination. He noted that he had reviewed 

the FCE report. Dr. Cenac opined: 

“[Appellant] can return to full duty with the restrictions noted on the FCE, eight 

hours per day. The acute sprains have resolved; however, [she] has progressive 

degenerative pathology which will continue to be symptomatic in the future, 

unrelated to the incident. This patient’s long-term work prognosis is limited 

because of her age, 63 years, and the progressive nature of the degenerative 

pathology, nonwork related.” 

Dr. Cenac completed an OWCP-5c work capacity evaluation dated August 15, 2011, outlining 

work restrictions that included 10 pounds lifting. 
3

In a letter dated August 31, 2011, OWCP requested that Dr. Sara Fernandez, a Boardcertified internist, review the August 15, 2011 report. On September 7, 2011 Dr. Fernandez 

indicated that she agreed with the findings of Dr. Cenac. In a report dated October 31, 2011, she 

provided results on examination. Dr. Fernandez reported a normal physical examination and 

indicated that appellant complained of back and neck pain. 

In a December 5, 2011 report, Dr. Mahmoud Sarmini, a physiatrist, reported that 

appellant had lumbar degenerative disc disease and opined that appellant’s employment-related 

injury had exacerbated her back pain. He reported on February 28, 2012 that appellant’s low 

back pain restricted her from lifting more than 20 pounds, as well as from standing or walking 

for long periods of time. 

By letter dated March 30, 2012, OWCP advised appellant that it proposed to terminate 

her wage-loss compensation and medical benefits. It indicated that the weight of the evidence 

was represented by Dr. Cenac, who found that the accepted conditions had resolved. 

On April 23, 2012 appellant submitted additional evidence, including an April 17, 2012 

report from Dr. Sarmini. Dr. Sarmini again wrote that appellant had lumbar degenerative disc 

disease and her job-related injury had aggravated low back pain. 

By decision dated May 3, 2012, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective May 6, 2012. It found that the weight of the medical evidence 

established that the accepted conditions had resolved. 

On May 31, 2012 appellant requested a review of the written record by an OWCP hearing 

representative. She submitted a May 29, 2012 report from Dr. Justin Lundgren, a Board-certified 

physiatrist. Dr. Lundgren provided a history and results on examination. He wrote that if it is 

true that appellant did not have neck or low back pain prior to the October 14, 2010 injury, then 

“we can point to the work activities on [October 14, 2010] as the cause of her pain.” 

Dr. Lundgren indicated that appellant had underlying degenerative disease in the neck and 

lumbar back, as most 60-year olds did, but the work activity brought the onset of pain and she 

never recovered. He also reported that results of an electromyogram/nerve conduction velocity 

study (EMG/NCV) performed on May 29, 2012 was suggestive of a sensory motor 

polyneuropathy. 

In a report dated June 5, 2012, Dr. Walter Eversmeyer, a rheumatologist, diagnosed 

fibromyalgia. He opined that, although trauma had never been shown to cause fibromyalgia, it 

seemed likely that, if appellant was well until her on-the-job injury, the injury precipitated the 

fibromyalgia. 

By decision dated September 7, 2012, OWCP’s hearing representative affirmed the 

May 3, 2012 decision. He found that OWCP had properly terminated appellant’s wage-loss 

compensation and medical benefits based on the medical evidence of record. In addition, the 

hearing representative found that the reports from Dr. Lundgren and Dr. Eversmeyer did not 

establish any continuing employment-related conditions or disability. 

Appellant, through counsel, requested reconsideration on January 22, 2013. She 

submitted an August 20, 2012 report from Dr. Hendricks Whitman, a rheumatologist, who 
4

provided a history, results on examination, and review of diagnostic studies. Dr. Whitman noted 

that a May 28, 2012 magnetic resonance imaging (MRI) scan of the lumbar spine showed 

multilevel degenerative disc and facet disease and a May 28, 2012 MRI scan of the cervical 

spine showed C5-7 spondylosis. In a December 12, 2012 report, he opined that appellant had an 

exacerbation of her osteoarthritis from lifting buckets at work. Dr. Whitman wrote that the 

lifting caused pain, muscle spasms and probable change in anatomical alignment of her cervical 

and lumbar spine, resulting in fibromyalgia, and chronic fatigue syndrome. He reported that 

appellant had multilevel degenerative disc disease, spinal canal stenosis, and facet arthropathy as 

documented on her imaging studies. 

By decision dated September 3, 2013, OWCP reviewed the merits of the claim and 

denied modification. It found that the medical evidence of record failed to establish any 

additional employment-related conditions. 

On December 3, 2013 appellant, through counsel, requested reconsideration. She 

submitted a November 20, 2013 report from Dr. Whitman that provided a history and results on 

examination. Dr. Whitman listed as compensable diagnoses: neck, thoracic and lumbar spine 

sprains and muscle spasms, right leg radiculopathy, chronic pain, chronic insomnia, and 

fibromyalgia. He further found that “Based on my medical rationale, physical examination, 

review of history, [appellant] received an injury while she was employed at the [employing 

establishment] related to multiple heavy lifting of 52 seventy-[pound] buckets incurring back 

sprain, muscle spasms, and nerve root injury with pain down her leg.” 

By decision dated December 10, 2013, OWCP reviewed the merits of appellant’s claim 

and denied modification. It found that the evidence from Dr. Whitman was of limited probative 

value. 

On May 17, 2014 appellant, through counsel, again requested reconsideration. She 

submitted a March 14, 2014 report from Dr. Whitman that provided results on examination. 

Dr. Whitman diagnosed aggravation of neck and back osteoarthritis, fibromyalgia, chronic 

fatigue syndrome (including episodic dysfunction of the central nervous system), spinal stenosis, 

facet arthropathy, lumbar and cervical radiculopathy. He opined that appellant’s conditions were 

causally related to the job injury of October 14, 2010. Dr. Whitman further reported, “[t]he 

reason for my opinion is as follows: The initial lifting of approximately 52 seventy-pound 

buckets would cause stress to the muscles and nerves in the lumbar and thoracic region. While 

degenerative changes (osteoarthritis) of the lumbar spine and cervical spine have a certain 

amount of age appropriateness, the repetitive lifting of extremely heavy buckets of mail would 

cause an exacerbation and acceleration of this process.” Dr. Whitman asserted this was 

consistent with the findings of Dr. Lurie. He wrote that, as a consequence of appellant’s extreme 

pain at time of injury, she developed fibromyalgia, chronic fatigue syndrome, and episodic 

dysfunction of her central nervous system. Dr. Whitman opined, “It was the inflammation of 

these nerves that caused the fibromyalgia and episodic dysfunction of the central nervous system 

being experienced by [appellant].” He concluded that the MRI scan findings were consistent 

with the lifting injury of October 14, 2010. 
5

By decision dated October 22, 2014, OWCP reviewed the merits of the claim, but denied 

modification of its prior decision. It again found that the report from Dr. Whitman was of 

diminished probative value and was insufficient to overcome Dr. Cenac’s opinion. 

On October 6, 2015 appellant, through counsel, requested reconsideration. Counsel 

argued that Dr. Cenac did not discuss whether appellant’s underlying degenerative condition was 

aggravated by the October 14, 2014 injury. Appellant also submitted an August 9, 2015 report 

from Dr. Whitman. In this report, Dr. Whitman again opined that appellant had additional 

employment-related conditions. He concluded that there was no doubt that appellant’s work 

environment exacerbated her age-appropriate degenerative arthritis causing chronic pain, 

insomnia, and fibromyalgia and triggered her autoimmune disorder which caused a sensory 

polyneuropathy. Dr. Whitman also explained that, unfortunately, appellant’s accelerated 

degenerative arthritis, spinal stenosis, nerve root irritation all brought on by heavy lifting and, 

sleep deprivation, and chronic stress had not improved and she remained totally and permanently 

disabled despite comprehensive treatment with the state of the art medications. 

By decision dated June 7, 2016, OWCP reviewed the merits of the claim, but denied 

modification of its prior decision. It found that the evidence was insufficient to warrant 

modification. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP has accepted a claim, it has the burden of justifying termination or 

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

that disability ceased or that it was no longer related to the employment.5 The right to medical 

benefits is not limited to the period of entitlement to disability. To terminate authorization for 

medical treatment, OWCP must establish that appellant no longer has residuals of an 

employment-related condition that require further medical treatment.6 

ANALYSIS -- ISSUE 1 

In the present case, the only accepted conditions from the October 14, 2010 lifting 

incidents were sprains of the cervical, thoracic, and lumbar spine. OWCP has the burden of 

proof to terminate wage-loss compensation and medical benefits.7

 As to the accepted sprains, 

the medical evidence before OWCP as of the May 3, 2012 decision was of sufficient probative 

value to terminate compensation. 

 

 4 Jorge E. Stotmayor, 52 ECAB 105, 106 (2000). 

 5 Mary A. Lowe, 52 ECAB 223, 224 (2001). 

 6 Frederick Justiniano, 45 ECAB 491 (1994). 

7

 OWCP has the burden of proof to establish that the accepted conditions had resolved. See L.Y., Docket No. 16-

0774 (issued November 18, 2016); A.G., Docket No. 16-0356 (issued October 14, 2016). Appellant has the burden 

of proof to establish other conditions are employment-related. K.H., Docket No. 16-0776 (issued October 19, 2016). 
6

Dr. Cenac, the second opinion physician, found in his August 15, 2011 report that the 

sprains had resolved. An attending physician, Dr. Fernandez, indicated on September 7, 2011 

that she agreed with Dr. Cenac’s conclusions. Dr. Sarmini submitted reports dated December 5, 

2011 and February 28, 2012, but did not discuss the accepted sprains. 

The Board finds that the probative medical evidence of record established that appellant’s 

accepted sprains had resolved by May 6, 2012. The evidence of record was therefore sufficient 

to meet OWCP’s burden of proof to terminate wage-loss compensation and medical benefits as 

of May 6, 2012. 

On appeal counsel argues that OWCP did not meet its burden of proof to terminate 

appellant’s compensation. He argues that Dr. Cenac did not address whether there was an 

employment-related aggravation, but as noted, OWCP’s burden of proof relegated to the 

accepted conditions which were sprains. For the reasons discussed, the Board finds that the 

weight of the medical evidence was sufficient to meet OWCP’s burden of proof to terminate 

wage-loss compensation and medical benefits as of May 6, 2012 based on the accepted 

conditions. 

LEGAL PRECEDENT -- ISSUE 2 

After termination or modification of benefits, clearly warranted on the basis of the 

evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail, 

appellant must establish by the weight of the reliable, probative, and substantial evidence that she 

had an employment-related disability based on the accepted conditions which continued after 

termination of compensation benefits.8 

ANALYSIS -- ISSUE 2 

As noted above, the accepted conditions in the case are sprains of the neck, thoracic, and 

lumbar spine. It is appellant’s burden of proof to establish any continuing employment-related 

disability after compensation benefits have been properly terminated. The Board finds that the 

evidence of record is insufficient to establish that appellant had employment-related residuals or 

disability after May 6, 2012. 

Dr. Lundgren opined in his May 29, 2012 report that, while appellant had underlying also 

they were speculative degenerative disc disease, he speculated that the work activity had 

aggravated the condition and caused symptoms. He did not, however, provide supporting 

medical rationale. Rationalized medical opinion evidence is medical evidence that is based on a 

complete factual and medical background, of reasonable medical certainty, and supported by 

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

the specific employment factors identified by the claimant.9

 

 8 Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

 9 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 
7

Dr. Whitman opined in his March 14, 2014 report that the repetitive lifting of extremely 

heavy buckets of mail would cause an exacerbation and acceleration of the degenerative process. 

He also opined in his August 9, 2015 report that there was an employment-related aggravation. 

Dr. Whitman referred to a number of diagnoses, including degenerative arthritis, spinal stenosis, 

nerve root irritation, chronic pain, insomnia, fibromyalgia, and an autoimmune disorder. Again, 

the evidence lacks medical rationale connecting any of these diagnosed conditions to the 

October 14, 2010 injury.10

The Board notes that OWCP has not accepted an aggravation of degenerative disc 

disease, or any of the other diagnoses reported by Dr. Whitman.11 Based on the evidence of 

record, there is no rationalized medical evidence establishing an employment-related disability 

after May 6, 2012. It is appellant’s burden of proof, and the Board finds that appellant did not 

meet her burden of proof. 

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 compensation effective 

May 6, 2012. The Board further finds that appellant has not established continuing employmentrelated residuals or disability after May 6, 2012, causally related to the October 14, 2010 

employment injury. 

 10 Id. 

11 Appellant may pursue the issue with OWCP of expanding the accepted conditions in this case. 
8

ORDER 

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

Compensation Programs dated June 7, 2016 is affirmed. 

Issued: July 6, 2017 

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