United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer

__________________________________________

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Docket No. 18-1573

Issued: July 19, 2019

Appearances: Case Submitted on the Record

James D Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 14, 2018 appellant, through counsel, filed a timely appeal from a May 29, 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 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 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

ISSUES

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

wage-loss compensation and medical benefits, effective April 4, 2016; and (2) whether appellant 

has met his burden of proof to establish continuing employment-related disability or residuals after 

April 4, 2016 causally related to the accepted August 16, 2013 employment injury.

FACTUAL HISTORY

On August 19, 2013 appellant, then a 59-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on August 16, 2013, he sustained a low back injury when he 

lifted a tub of mail while in the performance of duty. He stopped work on August 17, 2013 and 

did not return.

On August 29, 2013 OWCP accepted appellant’s claim for a strain of back, lumbar region. 

On January 28, 2014 it expanded acceptance of his claim to include exacerbation of disc herniation 

with foraminal stenosis at L4-5, and disc bulge with facet arthrosis at L2-3. OWCP paid appellant 

wage-loss compensation on the supplemental rolls as of October 8, 2013 and on the periodic rolls 

as of December 15, 2013.

On May 13, 2014 Dr. Kenneth Rieger, a Board-certified orthopedic surgeon, performed an 

OWCP-authorized L4-S1 lumbar discectomy and lumbar laminectomy. 

On August 6, 2015 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), the medical record, and a list of questions, to Dr. Stanley R. Askin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine whether appellant continued to 

have residuals and disability due to the accepted employment injury. In a September 4, 2015 

report, Dr. Askin reviewed the SOAF and medical record. He noted that appellant presented

ambulating with an aluminum cane. Dr. Askin related that appellant had a surgical scar consistent 

with his history of the surgery performed by Dr. Rieger on May 13, 2014. Upon his review of the 

diagnostic imaging studies, he indicated that appellant’s MRI scan dated September 20, 2013 did 

not show acute findings in the sense of any hemorrhage, edema, contusions, or tears of the soft 

tissue. However, Dr. Askin noted that there was evidence of a disc bulge, prominently at L2-3 and 

L4-5 that was not unexpected for a person of appellant’s age. He indicated that there was nothing 

about the September 20, 2013 MRI scan that actually established conclusively that he required 

surgery. Furthermore, Dr. Askin related that there was nothing wrong with appellant’s lower back 

from an objective clinical point of view that was not under appellant’s control, and that there was 

nothing objectively persisting regarding the accepted conditions. He noted that appellant did not 

have a current disability referable to the August 16, 2013 employment injury. Dr. Askin indicated 

that appellant could return to full-duty work without restrictions.

In a report dated September 22, 2015, Dr. Neil Kahanovitz, a Board-certified orthopedic 

surgeon, noted that appellant had reached maximum medical improvement (MMI) and was unable 

to work due to his injuries.

In an addendum to the September 4, 2015 report dated November 3, 2015, Dr. Askin 

provided OWCP a clarification regarding his second opinion evaluation performed on 

September 4, 2015. He noted that appellant’s accepted conditions had resolved because of the 

extended convalescence afforded to him since the August 16, 2013 employment injury. Dr. Askin
3

also indicated that there was no objectively determinable reason why appellant would not be able 

to resume his employment duties, which he was able to perform prior to the August 16, 2013 

employment injury.

On February 9, 2016 OWCP provided appellant with a notice of proposed termination of 

his wage-loss compensation and medical benefits because the medical evidence of record 

established that he no longer had any residuals or continuing disability from work. It determined 

that the weight of the medical evidence rested with the September 4 and November 3, 2015 reports 

from Dr. Askin. OWCP afforded appellant 30 days to submit additional evidence or argument. 

In a report dated February 16, 2016, Dr. Kahanovitz indicated that appellant appeared to 

have reached MMI and had failed to respond to appropriate postoperative conservative 

management. He noted that appellant could possibly return to work in a sedentary setting, but not 

as a letter carrier.

By decision dated April 4, 2016, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective that date. It found that the weight of the medical evidence rested 

with Dr. Askin who reported that appellant no longer had any residuals or disability stemming 

from the accepted employment injury. 

In a letter dated April 11, 2016, appellant, through counsel, requested a telephonic hearing 

with an OWCP hearing representative regarding the April 4, 2016 termination decision.

Counsel submitted a report dated May 4, 2016, in which Dr. Kahanovitz related that 

appellant had significant spinal stenosis and secondary foraminal stenosis at the L4-5 level that 

were consistent with his lower extremity radicular pain and complaints. He noted that while

Dr. Askin’s assessment indicated that there was no evidence of disc herniation, the aforementioned 

diagnoses were apparent nonetheless. Counsel related that appellant’s ongoing symptoms and 

need for surgery were related to his employment-related aggravation of the spinal stenosis 

secondary to the disc herniation and nerve root impingement. 

By decision dated February 28, 2017, an OWCP hearing representative affirmed the 

April 4, 2016 termination decision. He found that the medical evidence submitted was insufficient 

to outweigh Dr. Askin’s medical opinion. 

On July 10, 2017 appellant, through counsel, requested reconsideration of the February 28, 

2017 decision. 

In support thereof, appellant submitted a July 5, 2017 report from Dr. Rieger who noted 

appellant’s medical history and diagnoses. Dr. Rieger indicated that appellant underwent a 

physical examination on June 21, 2017, which revealed relatively unchanged persistent sciatica 

and back pain. He related that appellant would only be capable of sedentary work duty at an 

absolute maximum. Dr. Rieger noted that appellant’s diagnosis of a disc herniation at L4-5 from 

the August 16, 2013 employment injury was directly and causally related to his chronic pain and 

inability to work. He concluded that he could not disagree more strongly with Dr. Askin’s 

November 3, 2015 assessment, because appellant had sustained injuries to both his lumbar spine 

and sciatic nerve that had not resolved with appropriate treatment, and would not improve in the 

future. 
4

By decision dated October 6, 2017, OWCP denied modification of the February 28, 2017 

decision, finding that the evidence submitted was insufficient to alter the weight of the medical 

evidence. 

On March 8, 2018 appellant, through counsel, requested reconsideration of the October 6, 

2017 decision. 

In support of his reconsideration request, appellant submitted a report dated January 25, 

2018 from Dr. Sripad Dhawlikar, a Board-certified orthopedic surgeon, who examined appellant 

for ongoing symptoms of lumbar spinal pain, lumbar radiculopathy, and weakness in the lower 

right extremity. He noted that further treatment of these symptoms should be part of appellant’s 

workers’ compensation claim.

In a follow-up report dated February 27, 2018, Dr. Dhawlikar, after reviewing x-rays and 

computerized axial tomography (CAT) scans of appellant’s lumbar spine, diagnosed appellant 

with lumbar disc degeneration and facet arthropathy with foraminal stenosis. 

In a report dated March 6, 2018, Dr. Rieger examined appellant and noted that because of 

appellant’s radiculopathy, objective weakness, and inability to walk distances, appellant was only 

capable of sedentary work with maximum lifting capacity of 10 pounds.

By decision dated May 29, 2018, OWCP denied modification of the October 6, 2017 

decision.

LEGAL PRECEDENT -- ISSUE 1

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

compensation. After it has been determined that an employee has disability causally related to his 

or her employment, OWCP may not terminate compensation without establishing that the 

disability had ceased or that it was 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.6 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.7

 

4 M.C., Docket No. 18-1374 (issued April 23, 2019); L.H., Docket No. 17-1859 (issued May 10, 2018); Jason C. 

Armstrong, 40 ECAB 907 (1989).

5 M.C., id.; see Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6 M.C., Docket No. 18-1199 (issued April 5, 2019); see L.H., supra note 4; T.P., 58 ECAB 524 (2007); Kathryn E. 

Demarsh, 56 ECAB 677 (2005).

7 M.C., id.; see L.H., supra note 4; Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).
5

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 April 4, 2016.

In his September 4, 2015 report, Dr. Askin, OWCP’s second opinion medical specialist, 

detailed appellant’s factual and medical history and reported findings on physical examination. 

He opined that there was no evidence of ongoing disability or medical residuals from appellant’s 

accepted conditions. Dr. Askin found that appellant’s current conditions were not unexpected for 

someone appellant’s age. He reviewed appellant’s diagnostic examinations and concluded that 

they did not show acute findings in the sense of any hemorrhage, edema, contusions, or tears of 

the soft tissue. Dr. Askin further noted that there were no objective findings on clinical 

examination and concluded that appellant did not require further medical treatment or work 

restrictions. In his supplemental opinion dated November 3, 2015, Dr. Askin clarified for OWCP 

that appellant’s accepted employment conditions had resolved and that there was no objective 

evidence to negate appellant’s ability to perform his date-of-injury employment duties.

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 the medical records and 

evidence of record. He unequivocally opined that appellant did not have residuals or disability 

from the accepted employment-related condition, and he provided a medical explanation supported 

by objective findings.8 Dr. Askin’s reports were therefore of probative medical value. 

Appellant’s attending physician, Dr. Rieger, in his July 5, 2017 narrative report, opined 

that appellant had residuals and disability from the August 16, 2013 employment incident.

However, he failed to provide a well-rationalized opinion, with supporting objective evidence that 

appellant’s accepted conditions had not ceased. Dr. Rieger reported chronic sciatica and back 

pain. However, he did not provide objective physical findings of the accepted work-related 

conditions nor did he support his finding of continued work-related residuals and disability with 

medical reasoning.9 Dr. Rieger’s reports were therefore of limited probative value. 

Similarly, OWCP received September 22, 2015 and February 16, 2016 reports from

Dr. Kahanovitz. While Dr. Kahanovitz opined that appellant remained at least partially disabled, 

he did not provide objective findings to substantiate that appellant had residuals or disability 

causally related to the accepted employment conditions.10

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.11

 

8 See M.C., supra note 6; see also A.C., Docket No. 16-1670 (issued April 6, 2018).

9 A.G., Docket No. 18-0749 (issued November 7, 2018). 

10 Id. 

11 Id.
6

LEGAL PRECEDENT -- ISSUE 2

Once OWCP meets its burden of proof to terminate appellant’s compensation benefits, the 

burden shifts to the claimant to establish that he or she has continuing residuals or disability 

causally related to the accepted employment injury.12 To establish causal relationship between the 

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

opinion evidence, based on a complete factual and medical background, establishing 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 finds that appellant has not established any continuing disability or residuals on 

or after April 4, 2016 causally related to the accepted August 16, 2013 employment injury.

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

submitted a report from Dr. Kahanovitz dated May 11, 2016 in which he opined that appellant’s 

ongoing symptoms were related to his employment-related aggravation of the spinal stenosis 

secondary to disc herniation and nerve root impingement. The Board finds that his opinion is of 

limited probative value because he did not provide medical rationale in support of his opinion on 

continuing work-related residuals. A medical opinion not fortified by medical rationale is of 

diminished probative value.15 Because Dr. Kahanovitz failed to provide sufficient medical 

rationale for his conclusion, his opinion is of diminished probative value.

In addition, OWCP received reports from Dr. Rieger dated July 5, 2016 and 

March 5, 2018. Dr. Rieger opined that appellant had unchanged persistent sciatica and back pain, 

and that he was only capable of sedentary work. The Board has explained that if appellant claims 

a condition not accepted or approved by OWCP was due to his employment injury, he bears the 

burden of proof to establish that the condition is causally related to the employment injury through 

the submission of rationalized medical evidence.16 However, Dr. Rieger did not provide medical 

rationale explaining how appellant’s accepted injury also caused sciatica, which was not an 

accepted condition. Furthermore, the Board has held that pain is a symptom, not a compensable 

medical diagnosis.17 

Appellant also submitted a report from Dr. Dhawlikar. In a report dated February 27, 2018,

Dr. Dhawlikar, after reviewing x-rays and CAT scans of appellant’s lumbar spine, diagnosed 

appellant with lumbar disc degeneration and facet arthropathy with foraminal stenosis. He neither 

addressed appellant’s continuing disability nor provided a rationalized medical opinion that 

 

12 Id.; George Servetas, 43 ECAB 424, 430 (1992). 

13 See A.C., supra note 8.

14 See M.C., supra note 6; D.M., Docket No. 17-1992 (issued September 12, 2018); C.W., Docket No. 12-1211 

(issued November 15, 2012); Darlene R. Kennedy, 57 ECAB 414 (2006).

15 T.L., Docket No. 18-0536 (issued November 27, 2018); W.W., Docket No. 09-1619 (issued June 2, 2010).

16 See K.V., Docket No. 18-1338 (issued June 19, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

17 Id.; S.R., Docket No. 14-0733 (issued August 18, 2015).
7

appellant continued to experience residuals of his employment-related injury.18 The Board finds 

that Dr. Dhawlikar’s report is of no probative value to meet appellant’s burden of proof.19

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

that he has continuing residuals or disability on or after April 4, 2016 causally related to the 

accepted injury.20 Appellant, therefore has not met his 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 has met its burden of proof to justify termination of appellant’s 

wage-loss compensation and medical benefits, effective April 4, 2016. The Board further finds 

that appellant has not established any continuing disability or residuals on or after April 4, 2016 

causally related to the accepted August 16, 2013 employment injury.

 

18 Id.; T.W., Docket No. 09-0649 (issued October 26, 2009).

19 Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is 

of no probative value on the issue of causal relationship. See L.B., Docket No. 18-0533 (issued August 27, 2018); 

D.K., Docket No. 17-1549 (issued July 6, 2018).

20 Id.; Dorothy Sidwell, 41 ECAB 857 (1990).
8

ORDER

IT IS HEREBY ORDERED THAT the May 29, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 19, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board