United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.Q., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Jackson, MI, Employer

__________________________________________

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Docket No. 17-1302

Issued: March 12, 2018

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 28, 2017 appellant, through her representative, filed a timely appeal from a

March 3, 2017 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.

 

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

ISSUE

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

compensation and medical benefits, effective March 3, 2017.

FACTUAL HISTORY

On January 20, 2015 appellant, then a 64-year-old driver, filed a traumatic injury claim

(Form CA-1) alleging that on December 31, 2014, she was struck by a “power ox,” a mail 

moving machine, which knocked her down and caused foot, leg, back, and elbow injuries. The 

medical evidence reflects that she was treated in an emergency room by Dr. Brett A. Gamma, a 

Board-certified emergency room physician, on December 31, 2014, for right foot and right elbow 

pain. Appellant reported being knocked down by a mail moving power ox at work. An x-ray of 

the right foot revealed no evidence of displaced fracture. Dr. Gamma diagnosed acute foot pain 

of the right foot and arm contusion. On January 23, 2015 appellant saw Dr. Eric G. Dawson, an 

orthopedic surgeon, who treated her for low back pain, right elbow pain, and headaches. 

Dr. Dawson noted the December 31, 2014 incident and advised that she did not lose 

consciousness. He diagnosed lumbar discopathy.

OWCP accepted appellant’s claim for sprain of the neck, thoracic spine, lumbar spine,

and unspecified site of the right elbow and forearm. Appellant stopped work on December 31, 

2014 and returned on January 12, 2015. She stopped work again on January 23, 2015 and 

returned to full-time duty with restrictions on March 30, 2015. OWCP paid appellant wage-loss 

compensation for this period. 

Appellant came under the treatment of Dr. Eric L. Weisbrot, a family practitioner, from 

April 7, 2015 to May 18, 2016, for the neck and back injuries sustained at work on 

December 31, 2014. She reported being struck by a “power ox” that spun out of control and 

knocked her to the ground. Appellant landed on her right side, hitting her head. Her history was 

significant for left foot surgery in 2012 and lumbar fusion in 2001. Dr. Weisbrot noted findings 

of paracervical tenderness, restriction range of motion, increased cervicodoral discomfort, healed 

thoracic spine scars, paralumbar tenderness, tenderness of the right elbow, and decreased right 

hand grip strength. Diagnoses included sprains and strains of the neck, thoracic spine, lumbar 

spine, and right elbow and forearm as well as unspecified thoracic, lumbosacral, and cervical

neuritis, radiculitis, and lumbar disc displacement. Dr. Weisbrot opined, within a reasonable 

degree of medical certainty, that appellant’s injuries were causally related to the December 31, 

2014 employment injury. He released her to return to modified-duty work and recommended 

physical therapy. In duty status reports (CA-17 forms) dated April 7, 2015 to May 18, 2016,

Dr. Weisbrot restated his diagnoses and noted that appellant could return to work with 

restrictions. 

Diagnostic testing of record includes a July 15, 2015 magnetic resonance imaging (MRI) 

scan of the lumbar spine showing a prior L5-S1 posterior spinal decompression and fusion, mildto-moderate bilateral foraminal narrowing, and multilevel degenerative changes greatest at L2-3.

A July 28, 2015 MRI scan of the cervical spine revealed mild degenerative disc disease, facet 

disease, and neural foraminal narrowing at C3-4. 
3

On April 20, 2016 Dr. Weisbrot noted diagnoses of lumbar disc displacement, lumbar 

radiculopathy, lumbar sprain/strain, cervical neuritis, cervical sprain/strain, and right elbow 

strain and sprain. He related the history of injury and opined that appellant’s work-related 

actions directly caused the injuries. Dr. Weisbrot noted that when one was hit unexpectedly it 

caused the body to jerk and move in an uncontrolled manner. The sudden movement caused

various muscles in appellant’s back and neck to quickly tighten as a reflex. Dr. Weisbrot noted 

that the second impact to the body when it hits the floor would cause sprained and strained 

tendons and ligaments. He noted that appellant had low back surgery in 2002 where she 

underwent a L5 fusion, but indicated that she was asymptomatic for over 10 years after surgery 

until this injury. Dr. Weisbrot noted that, with a sprain or strain injury of the muscles of the 

back, the lumbar vertebrae would lose juxtaposition with one another. This would cause extra 

strain to annular fibers of the intervertebral discs which would allow the nucleus pulposus to 

bulge or protrude causing irritation and inflammation of the nerve root and radiating pain in the 

legs. Dr. Weisbrot indicated that the MRI scan revealed degenerative changes and opined that 

exacerbation of degenerative arthritis changes was also causally related to the work injury. He

asked that all diagnoses be accepted as causally related to her injury. 

In a May 18, 2016 report, Dr. Weisbrot again asked that appellant’s accepted conditions 

be expanded to include lumbar disc disorder with radiculopathy, cervical disc displacement, 

cervical radiculopathy, and exacerbation of an arthritic condition. He noted that she had

benefited from her treatment and recommended an electromyogram (EMG) and nerve 

conduction velocity (NCV) study, and a functional capacity evaluation (FCE). 

On May 24, 2016 OWCP referred appellant to Dr. Stuart J. Gordon, a Board-certified 

orthopedist, to determine whether the accepted conditions had resolved and whether the 

employment injury caused any additional conditions. In a June 8, 2016 report, Dr. Gordon

indicated that he reviewed the records provided and he performed a physical examination. He 

noted findings on examination of the cervical spine, lumbar spine, left upper extremity, and right 

upper extremity revealed no abnormalities. With respect to the right elbow, he noted that 

appellant complained of pain through the lateral epicondyle region. Dr. Gordon noted x-rays of 

the cervical spine, with flexion-extension revealed spondylitic change. Radiographs of the 

lumbar spine with flexion-extension revealed pedicle screw instrumentation at L5-Sl and multilevel degenerative disease. Radiographs of the right elbow, right hand, and thoracic spine 

revealed degenerative disease. Dr. Gordon diagnosed preexisting cervical, thoracic, lumbar 

degenerative disease, unrelated; preexisting lumbar fusion, L5-S1, unrelated; preexisting 

degenerative disease right elbow and wrist, unrelated; December 31, 2014 chronic cervical, 

thoracic, and lumbar strain at maximum medical improvement (MMI); right elbow strain; and 

post-traumatic lateral epicondylitis, neurologic symptomology, right upper extremity. He

concluded, with a reasonable degree of medical probability, that the only significant, objective 

findings were degenerative changes on radiographs. Dr. Gordon opined that there was no 

additional indication for therapy or chiropractic treatment. He recommended EMG and NCV

studies of the right upper and lower extremities and lower extremity to assess the tremors in the 

right thumb and her left lower extremity complaints and an FCE. Dr. Gordon opined that 

appellant could work full time with restrictions. He further indicated that she was not at MMI. 

In a work capacity evaluation (OWCP-5c) dated June 8, 2016, Dr. Gordon noted that appellant 

could work full time, eight hours per day, with restrictions. He again noted that she had not 

reached MMI. 
4

Appellant underwent ultrasound examination on June 9, 2016 which revealed no 

sonographic evidence of compromise of the bilateral posterior tibial nerves suggesting Tarsal 

tunnel syndrome. 

Appellant submitted a July 7, 2016 report from Dr. Weisbrot who reviewed Dr. Gordon’s 

report and disagreed with his findings. Dr. Weisbrot indicated that Dr. Gordon did not offer any 

medical support or rationale for discontinuing physical therapy. Rather, he clearly indicated that 

appellant had residuals as he recommended EMG and NCV testing. Dr. Weisbrot noted that the 

injury did not cause the degenerative changes, but indicated that the changes were aggravated by 

her being knocked down by the power ox at work. He noted that appellant had not reached

MMI. In a duty status report (Form CA-17), dated July 21, 2016, Dr. Weisbrot noted that she

could continue to work full time with restrictions. 

On August 5, 2016 the employing establishment offered appellant a part time, two hours 

per day position as a scanner subject to restrictions. Appellant accepted the position and began 

working part time as a scanner two hours per day effective August 22, 2016.

3

 

In a report dated October 6, 2016, Dr. Weisbrot indicated that a July 8, 2016 EMG 

revealed electrophysiologic evidence of C6 nerve root pathology bilaterally.4 He noted that 

appellant was not at MMI. Dr. Weisbrot further noted that the FCE was performed and she did 

not meet the strength requirements to return to work as a truck driver. Appellant could continue 

to work with restrictions. On October 24, 2016 Dr. Weisbrot diagnosed thoracic or lumbosacral 

neuritis or radiculitis, sprain, and strain of the right elbow/forearm, neck, thoracic spine, and 

lumbar spine. He opined that appellant had not reached MMI and further treatment was 

medically necessary. Dr. Weisbrot continued her on modified duty for two-hour shifts per day. 

On October 14, 2016 appellant underwent ultrasound examination of the bilateral wrists 

which revealed sonographic evidence of compromise of the right median nerve suggesting 

entrapment.

On November 15, 2016 OWCP referred appellant, along with a statement of accepted 

facts (SOAF) and a list of questions, to Dr. Robert A. Smith, a Board-certified orthopedist, to 

determine the extent of any residuals or disability due to the accepted conditions. In a 

December 9, 2016 report, Dr. Smith related her history and reported findings on examination. 

Appellant’s gait and station were normal. Examination of the neck and back revealed no finding 

of spasm, atrophy, trigger points, or deformity. Active range of motion was satisfactory and 

functional without spasm or rigidity. Dr. Smith noted that the elbow revealed no deformity or 

instability, active motion was essentially full except for the last five degrees of extension which 

appellant hesitated to do because of stated pain complaints. Neurologic examination from an 

objective standpoint was normal, although appellant reported painful paresthetic sensations 

around the base of her right thumb. Dr. Smith noted that there were no residual factors of 

 

3 The record indicates that appellant’s medical restriction did not change, but instead, the amount of work 

available from the employing establishment within her restrictions changed. OWCP paid her compensation for 

wage loss resulting from her reduced work hours. 

4 The record contains the July 8, 2016 EMG testing.
5

disability or impairment with respect to the accepted conditions as a consequence of the 

December 31, 2014 employment injury. He opined that appellant’s symptoms were the result of 

chronic degenerative disease unrelated to this accident either directly or by aggravation, 

precipitation, or acceleration. Dr. Smith noted that the accepted conditions outlined in the SOAF

were medically related to the subjective loss by direct causation. He indicated that, based on the 

benign clinical findings noted on examination, these conditions had resolved without residuals. 

Dr. Smith further opined that there was no specific, current evidence that appellant continued to 

have right elbow post-traumatic lateral epicondylitis. He noted that there was no need for further 

treatment or surgery that would be indicated for any of the resolved conditions resulting from the 

work injuries. Dr. Smith advised that appellant had no total or partial disability due to any of the 

resolved accepted conditions. He further indicated that she did not require any work restrictions 

as a consequence of the work injury. Dr. Smith noted that appellant reached MMI. In an 

accompanying December 9, 2016 work capacity evaluation (Form OWCP-5c), he advised that 

she could work eight hours daily without restrictions.

Appellant submitted reports from Dr. Weisbrot dated November 21, 2016. Dr. Weisbrot 

diagnosed unspecified thoracic or lumbosacral neuritis or radiculitis, and sprain and strain of the 

right elbow/forearm, neck, thoracic spine, and lumbar spine. He opined that further medical

treatment was needed. Dr. Weisbrot continued appellant’s modified-duty restrictions. 

Appellant was seen by Dr. Mark Coleman, a Board-certified anesthesiologist, on 

November 30, 2016, for chronic spine pain. She reported that on December 31, 2014 she was 

operating a motorized small truck when it suddenly broke and threw her to the ground knocking 

her out. Dr. Coleman diagnosed lumbar post laminectomy syndrome and cervical spondylosis 

without myelopathy or radiculopathy. He noted that appellant presented with a two-year history 

of back pain radiating into both legs as well as right neck pain radiating into the arm. Appellant

noted being asymptomatic at the time of the accident. Dr. Coleman noted that she was currently 

restricted to two hours of light-duty per day. He recommended medial branch block: right C4-5, 

right C5-6, and right C6-7.

In December 19, 2016 and January 16, 2017 reports, Dr. Weisbrot noted findings of 

paracervical tenderness, restricted cervical spine motion, increased cervicodorsal discomfort on 

cervical spine motion, lumbar paraspinal tenderness inferiorly, and restricted lumbar spine 

motion. He diagnosed unspecified thoracic or lumbosacral neuritis or radiculitis, sprain and 

strain of the right elbow/forearm, neck, thoracic spine, and lumbar spine. Dr. Weisbrot noted 

outcome assessment questionnaire findings and continued appellant’s modified duty with

two-hour shifts per day. 

On January 30, 2017 OWCP proposed to terminate all compensation benefits finding that

Dr. Smith’s December 9, 2016 report established no continuing residuals of her work-related 

conditions.

Appellant submitted January 10 and February 14, 2017 notes from Dr. Coleman who 

performed cervical medial branch blocks at left C3-4, C4-5, and C5-6. Dr. Coleman diagnosed 

cervical spondylosis and spondylosis without myelopathy or radiculopathy. 
6

A February 13, 2017 report from Dr. Weisbrot noted no change in examination findings

and restated his previous diagnoses and recommendations. 

In another February 13, 2017 report, Dr. Weisbrot responded to the January 30, 2011 

proposed termination. He indicated that he wrote numerous reports requesting appellant’s case 

be expanded to include cervical disc displacement, cervical radiculopathy, lumbar disc disorder 

with radiculopathy, and exacerbation of a cervical spinal degenerative condition. Dr. Weisbrot 

noted the causal relationship based on objective medical evidence from MRI scan reports as well 

as the mechanism of injury. He advised that appellant’s diagnoses were confirmed by EMG’s of 

the cervical and lumbar spine showing nerve irritation causing symptoms of radiculopathy.

Dr. Weisbrot opined that the trauma of being knocked down and hitting one’s head on the 

cement floor would aggravate a prior degenerative condition. He disagreed with Dr. Smith’s 

opinion that appellant’s symptoms were the result of chronic degenerative disease unrelated to 

the accident. Dr. Weisbrot asserted that Dr. Smith failed to address the results of the EMG or the 

MRI scan findings. He noted that Dr. Smith found that appellant reached MMI, but he only saw 

her one time and there was no evidence he had her complete an outcome assessment 

questionnaire. Dr. Weisbrot opined that, based on the most recent outcome assessment 

questionnaire and the EMG findings, she continued to have residuals and that continued therapy 

was medically necessary. 

By decision dated March 3, 2017, OWCP terminated appellant’s compensation benefits 

effective that date. It based its decision on the report of Dr. Smith, the second opinion physician,

who opined that her accepted work-related conditions had resolved and that her degenerative 

changes were unrelated to her work injury. 

LEGAL PRECEDENT

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

modification or termination of an employee’s benefits. After it has determined that, an employee 

has disability causally related to his or her federal employment, it may not terminate 

compensation without establishing that the disability ceased or that it was no longer related to the 

employment.5 The right to medical benefits for an accepted condition is not limited to the period 

of entitlement to compensation for disability. 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

OWCP accepted appellant’s claim for sprain of the neck, thoracic spine, lumbar spine,

and unspecified site of the right elbow and forearm. Appellant stopped work on December 31, 

2014 and eventually returned to full-time modified duty on March 30, 2015 which she continued 

until August 22, 2016, when she began a part-time modified position when the employing 

establishment could no longer accommodate her restrictions. 

 

5 Kenneth R. Burrow, 55 ECAB 157 (2003). 

6 Furman G. Peake, 41 ECAB 361 (1990). 
7

On November 15, 2016 OWCP referred appellant for a second opinion evaluation by

Dr. Smith. In his December 9, 2016 report, Dr. Smith opined that there were no residual factors 

of disability or impairment of the accepted conditions as a consequence of the December 31, 

2014 employment injury. He opined that appellant’s symptoms were the result of chronic 

degenerative disease unrelated to the work injury directly or by aggravation. Dr. Smith indicated 

that, based on the benign examination findings, these conditions resolved without residuals. He

opined that there was no specific evidence currently to suggest that appellant continued to suffer 

from post-traumatic lateral epicondylitis of the right elbow. Dr. Smith noted that further 

treatment was not indicated for any of the resolved conditions. He advised that appellant had no 

total or partial disability with respect to any of the resolved conditions accepted for this claim. 

Dr. Smith further indicated that she did not require any work restrictions as a consequence of the 

work injury and indicated that she could work full time.

The Board finds that Dr. Smith had full knowledge of the relevant facts and evaluated the 

course of appellant’s condition. Dr. Smith is a specialist in the appropriate field. His opinion 

represents the weight of the evidence and establishes that appellant’s work-related conditions 

have resolved. Dr. Smith indicated that she did not have residuals from the conditions of sprain 

of the neck, thoracic spine, lumbar spine, and unspecified site of the right elbow and forearm. 

His opinion, as set forth in his report of December 9, 2016, is found to be probative evidence and 

reliable. The Board finds that Dr. Smith’s opinion constitutes the weight of the medical evidence 

and is sufficient to justify OWCP’s termination of wage-loss compensation and medical benefits 

for the accepted conditions. There is no contemporaneous medical evidence of equal weight 

supporting appellant’s claim for continuing disability and medical residuals.

Appellant submitted reports from Dr. Weisbrot dated November 21, 2016 to February 13, 

2017 who diagnosed unspecified thoracic or lumbosacral neuritis or radiculitis, sprain and strain 

of the right elbow/forearm, neck, thoracic spine, and lumbar spine. Dr. Weisbrot asserted that 

she had impairment, needed further treatment, and required continued modified duty with twohour shifts per day. However, he did not specifically address how any continuing condition or 

medical restrictions were causally related to the accepted December 31, 2014 employment 

injury. The Board has found that vague and unrationalized medical opinions on causal 

relationship have little probative value.7 Additionally, OWCP did not accept appellant’s 

condition for thoracic or lumbosacral neuritis or radiculitis.8

On February 13, 2017 Dr. Weisbrot requested that appellant’s case be expanded to 

include cervical disc displacement, cervical radiculopathy, lumbar disc disorder with 

radiculopathy, and exacerbation of a cervical spinal degenerative condition. He advised that her

diagnoses were confirmed by diagnostic testing. Dr. Weisbrot disagreed with Dr. Smith’s 

opinion that appellant’s symptoms were the result of chronic degenerative disease unrelated to 

the accident. He noted that Dr. Smith only saw her one time. Dr. Weisbrot noted that the recent 

 

7

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports

not containing rationale on causal relationship are entitled to little probative value).

8 See T.M., Docket No. 08-0975 (issued February 6, 2009) (where a claimant claims that a condition not accepted 

or approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the 

condition is causally related to the employment injury through the submission of rationalized medical evidence).
8

outcome assessment questionnaire and the EMG findings revealed that appellant had continued

residuals. Although he supported that she had continuing symptoms, he did not specifically 

explain how her current condition and continuing disability were causally related to the accepted 

employment injuries of December 31, 2014.9 Dr. Weisbrot did not provide sufficient medical 

rationale to explain why appellant continued to have residuals causally related to her 

employment injury. The need for rationale is particularly important where appellant was 

diagnosed with preexisting degenerative disc disease of the neck, cervical and lumbar spine, and 

had prior lumbar fusion.

10

 Additionally, as noted above, OWCP did not accept her condition for 

thoracic or lumbosacral neuritis or radiculitis and there is no evidence in the record to support 

such a conclusion.

Other notes from Dr. Coleman dated November 30, 2016 to February 14, 2017, 

diagnosed lumbar post laminectomy syndrome and spondylosis without myelopathy or 

radiculopathy, cervical region. Appellant reported that her symptoms were the result of a 

workplace accident which occurred on December 31, 2014 when she was operating a motorized 

small truck when it suddenly stopped and threw her to the ground, knocking her out.11 However,

Dr. Coleman did not specifically address how any continuing condition or medical

restrictions were causally related to the accepted December 31, 2014 employment injury. The

Board has found that vague and unrationalized medical opinions on causal relationship have

little probative value.12

On appeal, appellant, through her representative, asserts that OWCP improperly 

terminated her benefits as she continued to have residuals of her accepted conditions. As found, 

the December 9, 2016 report from Dr. Smith represents the weight of the medical evidence and 

establishes that her work-related conditions have resolved. There was no contemporaneous 

medical evidence of equal or greater weight supporting that appellant had continuing disability 

and medical residuals of the accepted conditions. She alleges that OWCP did not properly

expand her claim to include lumbar neuritis/radiculitis, lumbar disc displacement and cervical 

neuritis, and post-traumatic lateral epicondylitis. However, the Board notes that since OWCP 

did not issue a final decision within 180 days of the appeal on whether these additional 

conditions were causally related to the December 31, 2014 work injury, the Board does not have 

jurisdiction over the matter.13 Appellant also asserts that the SOAF provided to Dr. Smith was 

inaccurate as Dr. Gordon’s diagnosed post-traumatic lateral epicondylitis should have been 

included as accepted. The Board notes that the SOAF properly listed the conditions that OWCP 

 

9 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not 

fortified by medical rationale is of little probative value).

10 See S.C., Docket No. 17-0490 (issued June 27, 2017) (where the Board held that the need for rationale is 

particularly important where the evidence indicated that appellant had a preexisting condition). 

11 This report appears to be based on an inaccurate history as initial medical reports of record do not indicate that 

appellant experienced a loss of consciousness on December 31, 2014. See Leonard J. O’Keefe, 14 ECAB 42, 48 

(1962) (where the Board held that medical opinions based upon an incomplete history have little probative value).

12 Jimmie H. Duckett, supra note 7. 

13 See 20 C.F.R. § 501.2(c). This decision does not preclude appellant from seeking a final adjudication from 

OWCP on this separate matter.
9

accepted as employment related. OWCP has not accepted the claim for post-traumatic lateral 

epicondylitis. Thus, this condition was not included in the SOAF. Dr. Smith properly based his 

opinion on accepted conditions as accurately related in the SOAF. Appellant asserts that the 

claims examiner was retaliatory and did not properly handle her claim. The record does not 

support this allegation. There is no evidence that OWCP improperly developed the claim. As 

explained, OWCP met its burden of proof in terminating appellant’s wage-loss compensation 

and medical benefits. 

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 3, 2017.

ORDER

IT IS HEREBY ORDERED THAT the March 3, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 12, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board