United States Department of Labor

Employees’ Compensation Appeals Board

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M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Trenton, NJ, Employer

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Docket No. 18-0283

Issued: July 27, 2018

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 27, 2017 appellant, through counsel, filed a timely appeal from a

September 14, 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 to consider the merits of the case.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 17, 2017; and (2) whether appellant has 

 

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

met his burden of proof to establish continuing disability or medical residuals after January 17, 

2017 due to his June 29, 2015 employment injury.

FACTUAL HISTORY

On June 24, 2015 appellant, then a 37-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that he developed pain and experienced a pop in his lower back while in the 

performance of his federal employment. He explained that he was pushing a hamper of mail when 

a wheel fell off. Appellant experienced a jolt and lost his balance. He stopped work on that day.

OWCP accepted appellant’s claim for lumbar sprain, and paid his wage-loss compensation on the 

supplemental rolls commencing August 9, 2015. 

On July 6, 2015 appellant’s attending physician, Dr. Bruce R. Rosenblum, a Boardcertified neurosurgeon, noted appellant’s history of pushing a hamper on June 24, 2015 and feeling 

a pop in his low back when the wheel fell off. He performed a physical examination and reported 

left sciatic notch tenderness, pain on extension of the lumbosacral junction, and positive left 

straight leg raising at 50 degrees. Dr. Rosenblum also found decreased motor strength in the left 

extensor digitorum. He recommended a lumbar magnetic resonance imaging (MRI) scan. 

Appellant underwent the MRI scan on July 29, 2015, which demonstrated L4-5 mild disc 

degeneration and focal small left posterior lateral disc bulge with minimal left perineural 

encroachment. On August 25, 2015 Dr. Rosenblum diagnosed left lateralizing L4-5 disc 

herniation with degenerative disc disease based on the July 29, 2015 MRI scan of the lumbar spine. 

He recommended physical therapy. In his November 16, 2015 note, Dr. Rosenblum found that 

following physical therapy appellant’s left lumbar radiculopathy with radiation to the posterior 

aspect of the left thigh was 40 percent improved. He released appellant to return to sedentary work 

for four hours per day with restrictions and recommended a 10-minute break every hour from 

sitting. On December 28, 2015 appellant accepted light-duty sedentary work position with 

periodic walking for four hours a day and returned to work that day.

On February 17, 2016 OWCP requested an additional medical report from Dr. Rosenblum.

On April 4, 2016 it received a February 8, 2016 note from him in which he reported that appellant 

had returned to work and was undergoing additional physical therapy.

On July 21, 2016 OWCP referred appellant, a statement of accepted facts, and a list of 

questions for a second opinion evaluation with Dr. Stanley Askin, a Board-certified orthopedic 

surgeon. In his August 19, 2016 report, Dr. Askin reviewed appellant’s history of injury and 

medical treatment. On physical examination he noted that appellant reported three areas of 

discomfort, but found that appellant could perform straight leg raising to 90 degrees, deep tendon 

reflexes were symmetrical in the lower extremities, normal muscle testing with coaxing, and that 

sensation was preserved to light touch throughout his lower extremities. Dr. Askin found that 

appellant had no objective findings on physical examination and opined that appellant’s MRI scan 

demonstrated age-appropriate disc degenerative changes. He attributed appellant’s current 

condition to degenerative disc disease which resulted in the development of arthritic changes in 

his facet joint. Dr. Askin opined that the motion of one or more of appellant’s arthritic lumbar 

facet joints explained the popping sensation that appellant experienced on June 24, 2015 and his 

ongoing discomfort. Therefore, he concluded that appellant did not have residuals of the accepted 

conditions. Dr. Askin found that appellant did not require further medical treatment as facet joint 
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arthrosis typically had a spontaneous resolution independent of treatment. He opined that 

appellant had no disability imposed by his employment injury. Dr. Askin reported that the 

development of degenerative changes with the passage of time could be associated with less 

facility in performing physically demanding activities, but that did not mean that there was a 

permanent change in his body due to the June 24, 2015 injury. Instead he opined that appellant 

had merely gotten older and his body no longer tolerated physically demanding activities without 

discomfort. Dr. Askin opined that appellant could return to his date-of-injury position without 

restrictions, with accommodations to address appellant’s aging process and age-related 

degenerative disc disease.

On November 9, 2016 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits. It relied on Dr. Askin’s findings that appellant’s employment-related 

disability and medical residuals had ceased. OWCP afforded appellant 30 days to submit evidence 

or argument if he disagreed with the proposal.

In an undated letter, appellant disagreed with the proposed termination of his wage-loss 

compensation and medical benefits. Dr. Rosenblum examined appellant on December 20, 2016 

due to his continued reports of back pain. He found reduced motor strength in appellant’s extensor 

digitorum longus and reversal of the lumbar lordosis. Appellant’s reflexes were normal throughout 

his extremities. Dr. Rosenblum reported 40 degrees of straight leg raising.

By decision dated January 17, 2017, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective that date. It determined that Dr. Askin’s report was 

entitled to the weight of the medical evidence and established that appellant had no continuing 

disability or medical residuals due to his accepted employment injury of lumbar strain.

On January 23, 2017 Dr. Rosenblum reported that appellant exhibited reduced motor 

strength in both the extensor halluces longus and the extensor digitorum longus on the left. He 

found that appellant had 40 degrees of straight leg raising. Dr. Rosenblum diagnosed lumbar 

radiculopathy and recommended that appellant continue working four hours a day repairing 

damaged mail, with a 10-minute break every hour. 

Appellant requested a hearing on February 4, 2017 before an OWCP hearing representative

regarding the January 17, 2017 termination decision. He provided an undated narrative statement 

and asserted that he was following his physician’s instructions to work only four hours a day. 

Appellant further contended that he accepted a permanent light-duty position working four hours 

a day.

On July 12, 2017 appellant testified during the oral hearing before OWCP’s hearing

representative. He asserted that he had no previous back injuries and that he played football, 

basketball, and baseball in school without injury. Appellant testified that he could work his 

limited-duty position, but could not return to his date-of-injury position as suggested by Dr. Askin.

In a July 20, 2017 note, Dr. Rosenblum disagreed with Dr. Askin’s findings. He reported 

that appellant had no prior back problems before the June 24, 2015 employment injury and noted 

that after the June 24, 2015 employment injury appellant had experienced pain radiating to the left 

lower extremity with MRI scan evidence of a left lateralizing L4-5 disc herniation. Dr. Rosenblum 
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further noted that appellant had evidence of a partial motor deficit in the left lower extremity. He 

concluded that appellant had post-traumatic lumbar radiculopathy causally related to his June 24, 

2015 employment incident and that this condition was a radicular dysfunction rather than a simple 

lumbar sprain.

By decision dated September 14, 2017, OWCP’s hearing representative found that 

appellant had not provided rationalized medical opinion evidence establishing a herniated disc 

causally related to the June 24, 2015 employment injury. He found that OWCP met its burden of 

proof to terminate appellant’s wage-loss compensation and medical benefits based on Dr. Askin’s 

report.

LEGAL PRECEDENT -- ISSUE 1

Under FECA, once OWCP accepts a claim and pays compensation, it has the burden of 

proof to justify termination or modification of an employee’s benefits.3 OWCP may not terminate 

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

the employment.4 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.5 The right to medical benefits 

for an accepted condition is not limited to the period of entitlement for disability compensation.6 

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.7

ANALYSIS -- ISSUE 1

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective January 17, 2017.

In his August 19, 2016 report, Dr. Askin detailed appellant’s factual and medical history 

and reported findings on physical examination. He found no objective physical findings of an 

employment-related back condition. Dr. Askin reported that appellant could perform straight leg 

raising on the left to 90 degrees, that deep tendon reflexes were symmetrical in the lower 

extremities, that he exhibited normal muscle testing with coaxing, and that sensation was preserved 

to light touch throughout appellant’s lower extremities. He found that appellant’s MRI scan 

demonstrated age-appropriate disc degenerative changes. Dr. Askin attributed appellant’s current 

condition to degenerative disc disease which resulted in the development of arthritic changes in 

 

3 See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4 See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. 

Minor, 37 ECAB 541 (1986).

5 See R.P., supra note 3; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6 See R.P., supra note 3; A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. 

Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).

7 See R.P., supra note 3; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); 

Furman G. Peake, id. 
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his facet joint. He found that appellant did not have residuals of the accepted condition. Dr. Askin 

found that appellant did not require further medical treatment. He further opined that appellant 

could return to his date-of-injury position without restrictions, and that any accommodations would 

need to address only appellant’s aging process and age-related degenerative disc disease.

The Board finds that Dr. Askin’s opinion represents the weight of the medical evidence in 

this case. Dr. Askin provided a detailed medical report reviewing appellant’s medical treatment 

and the evidence of record. He unequivocally opined that appellant did not have continuing 

residuals of an employment-related condition and provided a medical explanation supporting his 

findings. Dr. Askin’s opinion was also based on an accurate background.8

Dr. Rosenblum continued to support appellant’s disability for work and medical residuals 

due to the June 24, 2015 employment injury. However, he diagnosed additional conditions not 

accepted by OWCP including herniated disc at L4-5 with radiculopathy into appellant’s left lower 

extremity. Dr. Rosenblum failed to provide a well-rationalized opinion with supporting objective 

evidence. He reviewed the July 29, 2015 MRI scan and found that it demonstrated a herniated 

rather than a bulging disc. Dr. Rosenblum did not explain how and why the June 24, 2015 

employment injury resulted in a herniated disc in addition or instead of the accepted lumbar strain. 

As OWCP has not accepted any additional conditions as employment related, appellant has the 

burden of proof to establish an employment relationship which he has not done.9

The Board has long held that medical opinions not containing rationale describing causal 

relationship are of diminished probative value and are generally insufficient to meet appellant’s 

burden of proof.10 Dr. Rosenblum also failed to address the issue of appellant’s underlying 

degenerative disc disease. The Board has explained that medical rationale is particularly necessary 

if appellant has a preexisting condition.11 For these reasons, Dr. Rosenblum’s opinion is 

insufficiently rationalized to support that appellant has disability or residuals of his accepted 

lumbar strain or to cause a conflict with Dr. Askin’s opinion. The Board finds that the medical 

evidence of record was sufficient for OWCP to meet its burden of proof in this case. Dr. Askin 

provided a well-rationalized opinion that represents the weight of the medical evidence.

On appeal counsel contends that a conflict of medical evidence existed between

Dr. Rosenblum and Dr. Askin. However, for the reasons set forth above, Dr. Askin’s report 

represents the weight of the medical evidence.

 

8 A.C., Docket No. 16-1670 (issued April 6, 2018).

9 See A.H., Docket No. 16-1828 (issued August 17, 2017). 

10 Id.; Carolyn F. Allen, 47 ECAB 240 (1995).

11 See R.T., Docket No. 17-1730 (issued May 3, 2018). 
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LEGAL PRECEDENT -- ISSUE 2

Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to 

him to establish that he has continuing disability after that date related to his accepted injury.12 To 

establish causal relationship between 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 causal relationship.13 Causal relationship is a medical issue and the 

medical evidence required to establish a causal relationship is rationalized medical evidence.14

ANALYSIS -- ISSUE 2

The Board further finds that appellant has not established continuing disability or residuals 

after July 17, 2017 due to his June 29, 2015 employment injury.

In Dr. Rosenblum’s January 23 and July 20, 2017 notes, he continued to support 

appellant’s disability for work and need for medical treatment due to the diagnosed conditions of 

herniated disc and lumbar radiculopathy. He reported that appellant had no prior back problems 

before the June 24, 2015 employment injury and noted that after the June 24, 2015 employment 

injury appellant had experienced pain radiating to the left lower extremity with MRI scan evidence 

of a left lateralizing L4-5 disc herniation. Dr. Rosenblum concluded that appellant had posttraumatic lumbar radiculopathy causally related to his June 24, 2015 employment incident and that 

this condition was a radicular dysfunction rather than a simple lumbar sprain. 

The Board finds that Dr. Rosenblum did not provide medical reasoning to support his 

opinion that appellant had continuing residuals of the June 29, 2015 employment injury. The 

Board has held that the mere fact that the employee was asymptomatic before the injury, but 

symptomatic after the injury is insufficient without supporting rationale to establish causal 

relationship.15 Further, while Dr. Rosenblum maintained that appellant had a herniated disc with 

radiculopathy and required a limited work schedule, the Board notes that OWCP has not accepted 

appellant’s claim for herniated disc or radiculopathy. For conditions not accepted by OWCP as 

being employment related, it is the employee’s burden of proof to provide rationalized medical 

evidence sufficient to establish causal relationship, not OWCP’s burden to disprove such 

relationship.16 Dr. Rosenblum did not provide medical rationale explaining why these conditions 

and appellant’s work schedule restriction were causally related to the accepted employment injury. 

 

12 Manuel Gill, 52 ECAB 282 (2001).

13 Id.

14 C.W., Docket No. 12-1211 (issued November 15, 2012); Darlene R. Kennedy, 57 ECAB 414 (2006).

15 A.C., supra note 8; see Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of 

examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care 

of analysis manifested and the medical rationale expressed in support of the physician’s opinion are facts, which 

determine the weight to be given to each individual report).

16 F.J., Docket No. 17-0147 (issued March 27, 2018).
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Thus, the Board finds that his reports are of insufficient probative value to meet appellant’s burden 

of proof.17

The Board finds that appellant has not submitted sufficient medical evidence to establish 

that he has continuing residuals or disability after January 17, 2017 causally related to the accepted 

injury.

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CONCLUSION

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

medical benefits, effective January 17, 2017, as he no longer had residuals or disability causally 

related to his accepted employment injury. The Board further finds that he has not met his burden 

of proof to establish continuing employment-related residuals or disability after January 17, 2017

due to his June 29, 2015 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the September 14, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 27, 2018

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

 

17 M.R., Docket No. 17-0457 (issued April 13, 2018).

18 Supra note 16.