United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Homewood, IL, Employer

__________________________________________

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Docket No. 19-0313

Issued: January 15, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of the Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On November 28, 2018 appellant, through counsel, filed a timely appeal from a 

September 26, 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 September 26, 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

ISSUE

The issue is whether appellant has met her burden of proof to establish continuing disability 

on or after July 3, 2010 causally related to her November 7 and December 19, 1989 employment 

injuries.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The 

relevant facts are as follows.

Appellant, then a 29-year-old flexible letter carrier, filed two traumatic injury claims in 

1989 that have since been administratively combined. She filed the initial traumatic claim (Form 

CA-1) on November 7, 1989, alleging that she sustained a back injury that day when she stumbled 

while walking up steps. OWCP adjudicated the November 1989 claim under OWCP File No. 

xxxxxx943. Appellant filed the second traumatic injury claim (Form CA-1) on December 26, 

1989, alleging that she injured her back on December 19, 1989 while delivering parcels. The 

December 1989 claim was assigned OWCP File No. xxxxxx838. OWCP accepted that claim for 

lumbosacral strain and a herniated L4-5 disc with subsequent urinary incontinence. Appellant 

underwent lumbar surgery on February 3, 1992, and returned to modified duty in January 1993. 

She continued modified-duty work until December 11, 2003, when she stopped work and was paid 

wage-loss compensation on the supplemental rolls. OWCP paid appellant wage-loss 

compensation on the periodic compensation rolls effective May 14, 2006.

By decision dated June 30, 2010, OWCP terminated appellant’s wage-loss compensation,

effective July 3, 2010. Appellant thereafter submitted multiple requests for reconsideration. By 

decisions dated January 13 and June 2, 2011, July 9, 2012, and October 16, 2013, OWCP denied 

modification of its prior decisions. On January 3, 2014 appellant appealed to the Board from the 

October 16, 2013 decision. 

By decision dated July 7, 2014, the Board affirmed the October 16, 2013 decision.5 The 

Board found that the weight of the medical evidence rested with the opinion of Dr. Mukund 

Komanduri, a Board-certified orthopedic surgeon, in a capacity as an OWCP second opinion 

physician, who advised that appellant could return to full-time modified duty. The Board 

concluded that OWCP had met its burden of proof to terminate appellant’s wage-loss 

compensation, effective July 3, 2010, and further found that she had not met her burden of proof 

to establish continuing employment-related disability on or after that date.

On July 21, 2014 appellant, through counsel, requested reconsideration. In an attached 

brief, counsel contended that OWCP had not followed its procedures, and that the case required 

 

4 Docket No. 14-0526 (issued July 7, 2014); Docket No. 15-0659 (issued September 15, 2016); Order Remanding 

Case, Docket No. 19-0313 (issued September 4, 2019); Order Setting Aside Board Order and Reinstating Appeal, 

Docket No. 19-0313 (issued January 3, 2020).

5 Docket No. 14-0526, id.
3

further development.6 By decision dated October 15, 2014, OWCP denied appellant’s 

reconsideration request. 

The record contains copious medical evidence submitted following OWCP’s October 16, 

2013 decision.

7

An October 6, 2013 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine 

demonstrated a stable surgical fusion. An August 14, 2014 computerized tomography (CT) scan 

of the lumbar spine showed stable postoperative changes and multilevel degenerative disc disease. 

A February 24, 2015 right hip x-ray and September 18, 2015 MRI scan of the pelvis were negative. 

Dr. Konstantin Slavin, a Board-certified neurosurgeon, provided treatment notes dated 

March 3, 2014 to May 14, 2018. In a March 3, 2014 report, he advised that appellant had not been 

able to return to normal duties for medical reasons. Dr. Slavin noted complaints of chronic back 

and leg pain and advised that she needed to have her spinal cord stimulator replaced. He diagnosed 

multilevel lumbar spondylosis and lumbar stenosis with persistent lumbar radiculopathy and failed 

back syndrome. Dr. Slavin opined that these were related to her federal employment, and advised 

that she should avoid any kind of activity that worsened her pain, particularly heavy lifting, 

carrying heavy objects, and standing for long periods and, therefore, could not perform letter 

carrier duties. By report dated November 27, 2017, he described appellant’s difficulties with 

spinal cord stimulators and advised that since November 2015, when a spinal cord stimulator was 

removed, her pain had not been addressed properly. Dr. Slavin advised that her activity remained 

very limited due to chronic pain and asked for authorization of a new spinal cord stimulator. On 

May 14, 2018 he advised that appellant’s pain remained her major issue and she needed a spinal 

cord stimulator. 

A number of anesthesiologists practicing pain management saw appellant from May 15, 

2014 to May 19, 2015. 

In treatment notes dated October 1, 2013 to February 14, 2015, Dr. Ervin Kocjancic, a 

urologist, noted a history of mixed incontinence and a urethral lesion that had been resected. On 

August 27, 2014 he noted diagnoses of neurogenic bladder status post spinal fusion surgery, 

treated with Botox, and advised that appellant had an unspecified urethral stricture. Appellant had 

urethroplasty for hypospadic urethra on October 9, 2014.

Appellant, through counsel, appealed to the Board on January 30, 2015. By decision dated 

September 15, 2016, the Board found that the brief submitted on reconsideration contained 

relevant legal arguments, not previously considered by OWCP, as to whether it had properly 

terminated appellant’s wage-loss compensation and whether she had continuing disability. The 

Board concluded that appellant was entitled to a review of the merits of her claim and remanded 

the case to OWCP for an appropriate decision.8

 

6 The brief had previously been submitted to the Board. 

7 Docket No. 14-0526, supra note 4.

8 Docket No. 15-0659, supra note 4. During the pendency of this appeal, by decision dated May 21, 2015, OWCP 

granted appellant a schedule award for nine percent permanent impairment of the left lower extremity.
4

By decision dated September 26, 2018, OWCP reviewed the merits of appellant’s claim, 

but denied modification of its October 16, 2013 decision finding that Dr. Komanduri had clearly 

indicated that he had reviewed the DVDs.

LEGAL PRECEDENT

Once OWCP meets its burden of proof to terminate a claimant’s compensation benefits, 

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

to the accepted employment injury.9 To establish causal relationship between the condition as well 

as 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 a causal relationship.10 A claimant must establish by the weight of the reliable, probative, 

and substantial evidence that he or she had employment-related disability which continued after 

termination of compensation benefits.11

ANALYSIS

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

disability on or after July 3, 2010 causally related to her November and December 1989 

employment injuries.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s October 16, 2013 decision because the Board

considered that evidence in its July 7, 2014 decision. Findings made in prior Board decisions are 

res judicata absent any further review by OWCP under section 8128 of FECA.12

Neither appellant’s pain management anesthesiologists nor Dr. Kocjancic, her attending 

urologist, provided an opinion regarding whether she could perform modified duties. They did 

not reference appellant’s ability to return to work or note a period of disability. As these physicians 

have not provided an opinion on causal relationship between appellant’s continuing disability from 

work and her accepted employment injuries, their opinions are of no probative value and are 

insufficient to establish the claim.

13

Only Dr. Slavin voiced an opinion regarding appellant’s work capacity and advised that 

she had not been able to return to normal duties for medical reasons. The Board, however, finds 

that his opinion does not contain sufficient medical rationale to establish that appellant had 

continuing disability on or after July 13, 2010, causally related to the accepted November and 

December 1989 employment injuries, accepted for lumbosacral strain and a herniated L4-5 disc 

with subsequent urinary incontinence. While Dr. Slavin diagnosed multilevel lumbar spondylosis 

and lumbar stenosis with persistent lumbar radiculopathy and failed back syndrome, and opined 

 

9 T.W., Docket No. 18-1573 (issued July 19, 2019).

10 Id.

11 O.W., Docket No. 19-0316 (issued June 25, 2019).

12 See A.L., Docket No. 19-0285 (issued September 24, 2019). 

13 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
5

that these were related to her federal employment, none of these conditions have been accepted as 

due to the 1989 employment injuries.14 As Dr. Slavin provided no rationale explaining how 

physiologically the November and December 1989 incidents caused or contributed to the abovenoted diagnosed conditions, his opinion is insufficient to meet appellant’s burden of proof.15

 

Moreover, while he advised that appellant should avoid any kind of activity that worsened her 

pain, particularly heavy lifting, carrying heavy objects, and standing for long periods such that she 

could not perform letter carrier duties, appellant had been working modified duty when she stopped 

work. On May 14, 2018 Dr. Slavin advised that appellant’s pain remained her major issue and 

that she needed a spinal cord stimulator. In essence, he only provided a conclusory opinion in 

which he opined that appellant could not work, primarily due to pain. Dr. Slavin failed to explain 

how this opinion was supported by objective findings of record.16 The Board finds that his opinion 

is of limited probative value because he has not provided medical rationale in support of his 

opinion on continuing work-related disability.

17

 A medical opinion not fortified by medical 

rationale is of diminished probative value.18

The record also includes lumbar spine MRI and CT scans, an MRI scan of the pelvis, and 

a right hip x-ray. The Board has previously held that diagnostic studies lack probative value as 

they do not address causal relationship.

19

The Board finds that the record lacks rationalized medical evidence sufficient to meet 

appellant’s burden of proof to establish that she has continuing disability on or after July 3, 2010 

causally related to the accepted 1989 injuries.20 Appellant, therefore, has not met her burden of 

proof.21

On appeal counsel argues that in its September 26, 2018 decision, OWCP simply restated 

its prior analysis and ignored the Board’s prior directive in its September 15, 2016 decision. By 

that decision, the Board remanded the case for consideration of the merits followed by an 

appropriate merit decision. OWCP subsequently issued its September 26, 2018 merit decision 

which denied modification of its prior decision. As explained above, the Board finds that OWCP 

properly evaluated the evidence of record and found that appellant had not met her burden of proof 

to establish continuing disability on or after July 3, 2010 causally related to her accepted 

employment injuries. 

 

14 L.S., Docket No. 19-0959 (issued September 24, 2019).

15 Id.

16 L.G., Docket No. 19-0142 (issued August 8, 2019).

17 See T.W., supra note 9.

18 C.T., Docket No. 19-0508 (issued September 5, 2019).

19 F.H., Docket No. 18-0160 (issued August 23, 2019).

20 T.W., supra note 9.

21 L.S., supra note 14.
6

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 appellant has not met her burden of proof to establish continuing 

disability on or after July 3, 2010 causally related to her November 7 and December 19, 1989 

employment injuries.

ORDER

IT IS HEREBY ORDERED THAT the September 26, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 15, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board