United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Elkins, WV, Employer

__________________________________________

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Docket No. 19-0459

Issued: October 7, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 27, 2018 appellant, through counsel, filed a timely appeal from an 

October 17, 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 following the October 17, 2018 decision, OWCP received additional evidence. 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 29, 2018; and (2) whether appellant 

established continuing employment-related disability or residuals on or after April 29, 2018.

FACTUAL HISTORY

On March 15, 2007 appellant, then a 36-year-old airway transportation system specialist,

filed a traumatic injury claim (Form CA-1) alleging that on March 14, 2007 he slipped off a diesel 

fuel tank and fell approximately six feet to the ground, landing on his back while in the 

performance of duty. He stopped work on March 14, 2007 and received continuation of pay. 

OWCP accepted appellant’s claim for lumbar sprain. It ultimately placed him on the periodic 

compensation rolls effective May 8, 2011.4 OWCP also expanded acceptance of appellant’s claim 

to include cervical strain as an accepted condition. Appellant remained on the periodic rolls, 

receiving wage-loss compensation for temporary total disability.

On August 16, 2016 Dr. Yumila Barreto, a Board-certified internist, treated appellant in 

follow-up for chronic neck and low back pain radiating into the bilateral lower extremities. He 

noted a medical history of C5-6 degenerative joint disease, foramina encroachment at C5-6, L5-

S1 bulging disc, mild degeneration at L5-S1, bilateral S1 joint dysfunction, and bilateral facet 

syndrome. Findings on examination revealed decreased strength on plantar flexion of the left foot, 

calf, and quadriceps. Dr. Barreto diagnosed chronic neck and low back pain due to a herniated 

disc at L5-S1 and degeneration of intervertebral discs at L5-S1 and C5, C6, and C7. He opined 

that excessive weight gain worsened his physical condition, especially his back. In a work capacity 

evaluation (Form OWCP-5c) dated August 16, 2016, Dr. Barreto diagnosed chronic neck and low 

back pain. He opined that appellant could not work eight hours a day due to chronic neck and 

back pain and because of sedation from medication. Dr. Barreto advised that the restrictions were 

permanent. On August 29, 2017 he saw appellant and opined that he was not capable of working 

full time. 

On October 12, 2017 OWCP referred appellant to Dr. P. Kent Thrush, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In a report dated November 1, 2017, Dr. Thrush discussed appellant’s history of an 

employment injury on March 14, 2007 and reviewed the evidence of record, including the results 

of diagnostic testing. On examination he found appellant had a significant limp and used a cane; 

limited range of motion of the lumbar and cervical spine; positive and equal reflexes in the upper 

and lower extremity; and normal perception of touch in the upper and lower extremities.

Dr. Thrush found no objective evidence of lumbar strain and opined that this condition resolved 

within three to six months of the date of injury. He indicated that appellant’s current conditions 

and complaints relate to grade 1 degenerative disc disease at L5-S1. Dr. Thrush noted findings of 

degenerative arthritis and degenerative disc disease on the first magnetic resonance imaging (MRI)

scan on April 20, 2007 and opined within a reasonable degree of medical certainty that this was a 

preexisting condition. He noted that there was no objective evidence of aggravation, acceleration, 

exacerbation, or precipitation of the preexisting degenerative conditions. Dr. Thrush opined that 

 

4 Because appellant was unavailable for duty for medical reasons, the employing establishment removed him from 

service effective April 2, 2010. 
3

the degenerative findings in the lumbar and cervical spine were age-related and preexisting 

conditions. He indicated that appellant had objective evidence of degenerative arthritis and 

degenerative disc disease and noted the findings at L5-S1 were mild and unchanged on MRI scans 

from 2007 to 2014. Dr. Thrush noted that appellant required no ongoing medical treatment related 

to the lumbar sprain diagnosis. He advised that appellant’s subjective pain far exceeded the 

objective findings on the MRI scans of the lumbar and cervical spine as these findings would not 

normally result in poor balance, unrelenting pain, the need for a cane, or bedrest for 22 hours a 

day. Dr. Thrush found appellant to be totally disabled secondary to subjective pain which was 

disproportionate to his objective findings. In a work capacity evaluation (Form OWCP-5c), dated 

November 1, 2017, he noted no disability for the lumbar sprain, but total disability due to the mildto-moderate degenerative disc disease with severe subjective pain.

On December 4, 2017 OWCP requested that Dr. Thrush clarify whether appellant was 

totally disabled and in need of ongoing treatment related to the accepted employment injuries. In 

an addendum report dated December 11, 2017, Dr. Thrush concluded that objectively appellant no 

longer remained totally disabled and in need of ongoing treatment directly related to the accepted 

work injuries of lumbar and cervical strain which resolved within three to six months of the injury. 

Rather, he opined that appellant’s subjective symptoms were related to nonwork-related 

underlying early degenerative arthritis and degenerative disc disease. Dr. Thrush noted that 

because of appellant’s extreme subjective symptoms it was unlikely he would ever return to gainful 

employment.

On January 9, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits as the evidence of record established that he no longer had employment-related 

residuals or disability due to his accepted sprain of the back, lumbar region and sprain of the neck. 

It afforded him 30 day to submit additional evidence or argument, in writing, if he disagreed with 

the proposed termination.

Thereafter, OWCP received a March 26, 2018 report from Dr. Barreto who treated 

appellant in follow-up for chronic neck and low back pain radiating into the bilateral lower 

extremities. Dr. Barreto noted appellant’s medical history was significant for C5-6 degenerative 

joint disease, foramina encroachment at C5-6, L5-S1, bulging disc, and mild degeneration at L5-

S1. He noted that a March 23, 2018 MRI scan revealed central disc herniation at C5-6 and old 

compression fractures at T5-6. Dr. Barreto opined that the old compression fractures were related 

to appellant’s fall at work and support appellant’s complaints of pain and continued need for 

medication. He diagnosed chronic neck, thoracic, and low back pain due to herniated disc at L5-

S1, compression fractures of the thoracic spine, degeneration of intervertebral disc at L5-S1 and 

C5, C6, and C7, and obesity. Dr. Barreto opined that appellant was unable to work full time due 

to the above-noted conditions.

By decision dated April 3, 2018, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective April 29, 2018. It found that the opinion of Dr. Thrush established 

that he had no further residuals or disability due to his accepted employment injuries.

On April 9, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative which was held on August 7, 2018.

Subsequently, appellant submitted a May 18, 2018 report from Dr. Barreto who indicated 

that he was “perfectly healthy” (as per patient) until March 14, 2007 when he had an accident at 
4

work. Dr. Barreto explained that he could not prove that appellant’s lesions at C5-6 had not existed

prior to the accident. He opined that he did not have any scientific evidence that would show a 

diagnosis made in 2018 was the result of old injuries from an accident -- but suggested to ask the 

opposite question of how do you prove the lesions were there previously. Dr. Barreto noted that 

he was not an orthopedist or neurophysiologist and could not explain the details of appellant’s 

condition. He indicated that he had not treated appellant since August 2016 and suggested he be 

referred to an expert.

By decision dated October 17, 2018, OWCP’s hearing representative affirmed the April 3, 

2018 decision. He found that the opinion of Dr. Thrush constituted the weight of the evidence and 

established that appellant had no further disability or residuals of his accepted employment 

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.5 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.6 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.7

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

entitlement for disability.8 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.9

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 29, 2018.

On November 1, 2017 Dr. Thrush, an OWCP referral physician, found no objective 

evidence of lumbar strain and opined that the accepted conditions had resolved within three to six 

months of the date of injury. He indicated that appellant’s current conditions and complaints relate 

to grade 1 degenerative disc disease at L5-S1. Dr. Thrush noted findings of degenerative arthritis 

and degenerative disc disease on the first MRI scan on April 20, 2007 and determined that the 

degenerative findings in the lumbar and cervical spine were age-related and preexisting conditions. 

He noted that appellant required no ongoing medical treatment related to the lumbar sprain 

diagnosis. Dr. Thrush found appellant to be totally disabled secondary to subjective pain which 

 

5 M.M., Docket No. 17-1264 (issued December 3, 2018).

6 E.B., Docket No. 18-1060 (issued November 1, 2018).

7 G.H., Docket No. 18-0414 (issued November 14, 2018).

8 L.W., Docket No. 18-1372 (issued February 27, 2019).

9 R.P., Docket No. 18-0900 (issued February 5, 2019).
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was disproportionate to his objective findings. In an addendum report dated December 11, 2017,

Dr. Thrush opined that appellant no longer remained totally disabled and in need of ongoing 

treatment directly related to the accepted work injuries of lumbar and cervical strain which had

resolved within three to six months. Appellant’s subjective symptoms were related to nonworkrelated underlying early degenerative arthritis and degenerative disc disease. He provided a 

thorough review of the factual and medical background and accurately summarized the relevant 

medical evidence. Moreover, Dr. Thrush provided detailed findings on examination and reached 

conclusions regarding appellant’s condition which comported with his findings.10 Consequently, 

his opinion is entitled to the weight of the evidence and establishes that appellant had no further 

disability or need for medical treatment due to his March 14, 2017 employment injury effective 

April 29, 2018.

11

The remaining evidence submitted prior to OWCP’s termination of appellant’s 

compensation is insufficient to establish that he had continuing disability or residuals of his 

accepted employment-related conditions. On August 29, 2017 Dr. Barreto noted that appellant 

was unable to return to work full time. Similarly, in a report dated March 26, 2018, he noted a

March 23, 2018 MRI scan revealed central disc herniation at C5-6 and old compression fractures 

at T5-6. Dr. Barreto opined that the old compression fractures were related to appellant’s fall at 

work. He diagnosed chronic neck, thoracic, and low back pain due to a herniated disc at L5-S1, 

compression fractures of the thoracic spine, degeneration of intervertebral discs at L5-S1 and C5, 

C6, C7, and obesity. Dr. Barreto opined that appellant was unable to work full time due to the 

above-noted conditions. However, he did not address the relevant issue of whether appellant was 

disabled from employment or required further medical treatment due to his accepted employment 

injuries, and thus his opinion is of little probative value.12

The Board finds that the weight of the evidence establishes that appellant had no further 

employment-related disability or need for medical treatment effective April 29, 2018, the date 

OWCP terminated his wage-loss compensation and medical benefits.13

LEGAL PRECEDENT -- ISSUE 2

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

establish that he or she has continuing disability causally related to the accepted employment 

injury.14 To establish causal relationship between the disability claimed and the employment 

injury, appellant must submit rationalized medical evidence or opinion based on a complete 

medical and factual background supporting causal relationship.15

 

10 O.S., Docket No. 18-1549 (issued February 7, 2019).

11 O.W., Docket No. 17-1881 (issued May 1, 2018).

12 Id.

13 Id.

14 D.M., Docket No. 17-1052 (issued January 24, 2019).

15 A.M., Docket No. 17-1192 (issued September 19, 2018).
6

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish continuing 

employment-related disability or residuals on or after April 29, 2018.

Following the termination of his compensation, appellant submitted a May 18, 2018 report 

from Dr. Barreto who indicated that appellant was perfectly healthy (as per patient) until March 14, 

2007 when he had an accident at work. Dr. Barreto noted that he could not show that a diagnosis 

made in 2018 was the result of old injuries during an accident. He further noted that he was not 

an orthopedist or neurophysiologist and could not explain the details of appellant’s condition and 

had not treated appellant since August 2016. He suggested he be referred to an expert. As this 

evidence failed to address the relevant issue of appellant’s disability or need for medical treatment 

due to his March 14, 2017 employment injury, it is of no probative value.16

The Board thus finds that appellant has not met his burden of proof to establish continuing 

residuals or disability on or after April 29, 2018.17

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 terminate appellant’s wage-loss 

compensation and medical benefits effective April 29, 2018. The Board further finds that he has 

not met his burden of proof to establish continuing employment-related disability or residuals on 

or after April 29, 2018 due to his accepted employment injuries

 

16 L.B., Docket No. 18-0560 (issued August 20, 2018).

17 Supra note 15.
7

ORDER

IT IS HEREBY ORDERED THAT the October 17, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 7, 2019

Washington, DC

Christopher J. Godfrey, 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