United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S, Appellant

and

U.S. POSTAL SERVICE, SANDY SPRINGS 

CARRIER ANNEX, Sandy Springs, GA, 

Employer

__________________________________________

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Docket No. 20-1448

Issued: April 12, 2021

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 29, 2020 appellant, through counsel, filed a timely appeal from a July 13, 2020 

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

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation and medical benefits effective February 15, 2018 as he no longer had residuals or 

disability causally related to his accepted employment injury; and (2) whether appellant has met 

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

February 15, 2018 due to his accepted employment injury. 

FACTUAL HISTORY

On May 10, 2016 appellant, then a 54-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he experienced pain in his feet, right shoulder, hips, and 

right knee causally related to factors of his federal employment including bending, stooping 

twisting and prolonged sitting. He first became aware of his condition on February 20, 2016 and 

attributed to factors of his federal employment on February 29, 2016. Appellant stopped work on 

April 21, 2016. OWCP accepted the claim for bursitis of the right shoulder, right knee instability, 

plantar fascial fibromatosis, low back strain, and bilateral hip bursitis. It paid appellant wage-loss 

compensation for total disability on the supplemental rolls beginning April 23, 2016 and on the 

periodic rolls beginning May 28, 2017. 

A March 28, 2016 magnetic resonance imaging (MRI) scan of the right shoulder 

demonstrated moderate acromioclavicular arthropathy. An MRI scan of the hips of even date

demonstrated degenerative changes. 

In a report dated June 17, 2016, Dr. Jay B. Bender, a Board-certified physiatrist, discussed 

appellant’s history of osteoarthritis of the hips, knees, feet, and hands, bilateral carpal tunnel 

syndrome, right knee instability, and chronic low back syndrome. He noted that appellant had 

experienced pain in his low back, knees, feet, and right shoulder performing the duties of his 

employment. Dr. Bender diagnosed right shoulder bursitis, a tear of the lateral meniscus of the 

right knee, hip bursitis, bilateral plantar fascial fibromatosis, and lumbar strain. He opined that 

appellant’s employment duties had aggravated his bilateral hips, feet, knees, and right shoulder 

conditions.

A September 21, 2016 MRI scan of the lumbar spine showed disc desiccation and 

degeneration without a loss of disc height from L3 to S1, a central annular herniation at L5-S1, 

and facet arthropathy from L3 to S1 bilaterally. MRI scans of appellant’s feet obtained on even 

date demonstrated degenerative change at the first metatarsophalangeal joint, mild right foot 

bursitis, and a subchondral cyst. 

On October 26, 2016 Dr. Bender provided his review of the MRI scans. He requested that 

OWCP upgrade the diagnoses to include lumbar intervertebral disc degeneration, lumbar 

inflammatory spondylopathy, lumbar intervertebral disc displacement, a tear of the right lateral 

meniscus, unilateral primary osteoarthritis of the right knee, juvenile osteochondrosis of the right 

tibia and fibula, a right knee subluxation, a left foot contusion, primary osteoarthritis of the left 

foot and ankle, bursitis of the right ankle and foot, a bone cyst of the right ankle and foot, tarsal 

tunnel syndrome of the lower limb, and primary osteoarthritis of the right ankle. In an 
3

accompanying report of even date, Dr. Bender listed the same diagnoses and found that appellant 

could perform sedentary work with restrictions.

Dr. Bender continued to submit progress reports throughout 2017 describing his treatment 

of appellant and providing the same diagnoses. On January 17, 2017 he found that appellant was 

disabled from employment. On February 21, 2017 Dr. Bender again requested that OWCP 

upgrade the diagnoses to include the additional diagnosed conditions. 

On March 7, 2017 OWCP referred appellant to Dr. Raju Vanapalli, an orthopedic surgeon, 

for a second opinion examination to determine the accepted conditions due to the employment 

injury. It requested that Dr. Vanapalli review the conditions diagnosed by Dr. Bender on 

February 21, 2017 and specify which should be accepted under the current claim. OWCP indicated 

that appellant had not complained of an injury to his back. 

In a report dated May 4, 2017, Dr. Vanapalli provided his review of appellant’s history of 

injury and medical records. On examination he found full strength and sensation of the upper and 

lower extremities and no spasms, trigger points, or tenderness in the cervical and lumbar spine. 

Dr. Vanapalli further found no loss of motion, swelling, warmth, or tenderness of the hips, and no 

signs of tarsal tunnel syndrome. He opined that appellant’s shoulder motion was almost normal 

with no tenderness at the subacromial or sub-deltoid region or any evidence of bursitis. 

Dr. Vanapalli further found no right knee instability, a negative McMurray’s test, and intact 

collateral and cruciate ligaments. He related, “Plantar fascial fibromatosis is also secondary to 

flatfeet which are developmental and not work related.” Dr. Vanapalli found that appellant had 

no objective evidence of a low back strain, noting that he had no spasm, tenderness, trigger points, 

or motion loss. He indicated that he had found symptom magnification but not malingering. In 

an accompanying work capacity evaluation (OWCP-5c) form, Dr. Vanapalli advised that appellant 

could perform modified employment walking up to three hours per day and occasionally lifting up 

to 50 pounds.

On June 8, 2017 OWCP requested that Dr. Bender address appellant’s current 

employment-related condition and whether appellant could return to his usual or modified 

employment. It noted that he was treating appellant for a degenerative lumbar condition and 

requested that he address whether this condition was employment related. 

A June 30, 2017 MRI scan of the lumbar spine demonstrated disc desiccation and 

degeneration without loss of height from L3 to S1, facet arthropathy at L3-4, L4-5, and L5-S1, a 

central annular disc herniation at L5-S1, and a new disc herniation at L4-5 when compared to the

September 21, 2016 MRI scan. 

In a July 6, 2017 report, Dr. Bender provided the history of injury and his review of the 

diagnostic studies and appellant’s medical treatment. He again diagnosed additional conditions 

that he thought should be accepted. Dr. Bender advised that appellant was disabled from 

employment. 

On July 19, 2017 Dr. Bender again requested that appellant’s diagnoses be upgraded to 

include lumbar intervertebral disc degeneration, lumbar inflammatory spondylopathy, lumbar 

intervertebral disc displacement, a tear of the right lateral meniscus, unilateral primary 
4

osteoarthritis of the right knee, juvenile osteochondrosis of the right tibia and fibula, a right knee 

subluxation, a left foot contusion, primary osteoarthritis of the left foot and ankle, bursitis of the 

right ankle and foot, a bone cyst of the right ankle and foot, tarsal tunnel syndrome of the lower 

limb, and primary osteoarthritis of the right ankle.3 He advised that, based on his review of 

appellant’s job duties, the medical records, and physical examination, the “work-related activity 

reasonably caused the injury.” Dr. Bender requested that OWCP “add the additional diagnoses to 

the listed of accepted conditions....” 

OWCP determined that a conflict in medical opinion existed between Dr. Vanapalli and

Dr. Bender regarding the extent of appellant’s disability for employment. It referred appellant to

Dr. Warner Wood, a Board-certified orthopedic surgeon, for an impartial medical examination. 

In a report dated November 10, 2017, Dr. Wood provided his review of appellant’s work 

history and the medical reports of record, including the results of diagnostic studies. He indicated 

that the physical findings included tenderness where there were no joints and an inconsistent 

straight leg raise. Dr. Wood related that the “decreased sensation in the lateral foot on the left, and 

the slight calf atrophy on the right are not supportive as they are in different legs.” He found 

normal ankle and knee reflexes demonstrating no significant nerve root irritation, an essentially 

normal examination of the right knee, and normal examination of the right shoulder, bilateral hips, 

and bilateral feet. Dr. Wood opined that there was no objective evidence of any of the accepted 

conditions, noting that the objective and subjective findings were minimal. He found that appellant 

could resume his usual employment without restrictions. Dr. Wood asserted that the objective 

findings on examination failed to support his subjective complaints and that the changes on 

diagnostic studies were mild and could be due to aging rather than employment. He opined that 

appellant should preferably limit lifting to 50 pounds due to his small stature.

On January 11, 2018 OWCP advised appellant of its proposed termination of his wage-loss 

compensation and medical benefits as the weight of the evidence established that he no longer had 

any employment-related residuals or disability due to his accepted employment injury. It afforded 

him 30 day to submit additional evidence or argument if he disagreed with the proposed 

termination.

By decision dated February 14, 2018, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective February 15, 2018. It found that the opinion of

Dr. Wood represented the special weight of the medical evidence and established that appellant

had no further residuals or disability due to his accepted conditions. 

In a March 8, 2018 report, Dr. Kevin McCowan, a surgeon, provided the same history of 

injury and diagnoses as Dr. Bender. He submitted similar reports on May 1 and June 5, 2018, 

noting that appellant had medically retired. 

On June 11, 2018 appellant’s counsel requested reconsideration. He asserted that appellant

was unable to resume his regular employment due to his right knee, right shoulder, lumbar spine, 

bilateral feet, and bilateral hip injuries.

 

3 Dr. Bender submitted progress reports dated September 6 and October 2, 2017. 
5

By decision dated July 31, 2018, OWCP denied modification of its February 14, 2018 

decision. 

In an initial evaluation dated August 27, 2018, Dr. Victor Osisanya, a Board-certified 

physiatrist, obtained a history of appellant injuring his right shoulder, right knee, bilateral hips, 

low back, and bilateral feet performing his work duties over time. He provided examination 

findings and reviewed the results of diagnostic testing. In addition to the accepted conditions,

Dr. Osisanya listed as upgraded diagnoses right shoulder osteoarthritis, facet arthropathy, lumbar 

radiculopathy, lumbar intervertebral disc degeneration and displacement, a lumbar herniated disc 

with radiculopathy, bilateral osteoarthritis of the hips, a right knee lateral meniscal tear, 

subluxation, osteoarthritis, and a collateral ligament tear, osteoarthritis of the bilateral ankle and 

feet, and a right solitary calcaneal cyst. He related:

“In my medical rationale, based on my review of [appellant’s] job duties and 

responsibilities and my physical examination and review of the records, [he] 

sustained an occupational injury as a direct result of the prolonged and repetitive 

standing and walking on the hard concrete floors of the employing establishment 

which led to his multiple right knee injuries (those accepted and those submitted 

for upgrade) and his bilateral foot/ankle injuries both accepted and those submitted 

for upgrade.” 

Dr. Osisanya further found that appellant’s job duties accelerated his right shoulder, 

lumbar, and bilateral hip conditions, both those already accepted, and those submitted for upgrade.

An MRI scan of the right knee obtained on August 28, 2018 demonstrated a complex lateral 

meniscal tear with degenerative changes to the lateral compartment. An MRI scan of the lumbar 

spine of even date demonstrated degenerative changes. 

Appellant submitted progress reports from Dr. McCowan dated August 2018 describing 

appellant’s treatment. 

On October 1, 2018 Dr. Osisanya provided the same diagnoses as in his August 2018 

report. He indicated that he had reviewed imaging studies which “confirmed again all above 

mentioned diagnoses both accepted and those being submitted for upgrade....”

4

On January 28, 2019 appellant requested reconsideration. 

By decision dated April 26, 2019, OWCP denied modification of its July 31, 2019 decision. 

Thereafter, OWCP received a November 3, 2017 determination by the Office of Personnel 

Management that appellant was disabled due to bilateral hip osteoarthritis, flat feet, and benign 

prostatic hyperplasia. It further received progress reports dated January 30, March 5, April 22, 

and May 29, 2019 from Dr. Osisanya containing the same diagnoses and upgraded diagnoses as in 

his previous reports. 

 

4 Dr. Osisanya provided a similar reports on November 16 and December 11, 2018 and February 5, 2019. 
6

In a report dated March 18, 2020, Dr. Charles D. Fowler, a Board-certified internist, found 

that appellant had a history of a repetitive motion injury to his right shoulder from his occupation. 

He indicated that appellant had continued right shoulder pain, stiffness, loss of motion, laxity, and 

instability. Dr. Fowler recommended continued physical therapy and advised that the condition 

was due to appellant’s employment.

On April 24, 2020 appellant, through counsel, requested reconsideration. Counsel noted 

that Dr. Vanapalli had found that appellant could work with restrictions, and that the conflict arose 

regarding appellant’s work capacity rather than continued employment-related residuals. He 

asserted that the opinion of Dr. Wood was conclusory, lacked rationale, and questioned the 

relationship of the accepted conditions. Counsel further contended that Dr. Wood had failed to 

provide his review of all the medical evidence. He maintained that the statement of accepted facts 

did not contain a description of the medical treatment and diagnostic testing that appellant had 

received since his injury. Counsel maintained that appellant had sustained additional employmentrelated conditions.

On June 15, 2020 Dr. Fowler advised that appellant had a history of pain and osteoarthritis 

of the bilateral hips due to repetitive motion from appellant’s employment. He asserted that 

appellant required additional physical therapy for appellant’s condition, which he advised was 

“clearly work related.”

By decision dated July 13, 2020, OWCP denied modification of its April 26, 2019 decision. 

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

 

5 R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

6 A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

7 C.R., Docket No. 19-1132 (issued October 1, 2020); 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).
7

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint a 

third physician who shall make an examination.10 When there are opposing reports of virtually 

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant 

to section 8123(a) of FECA, to resolve the conflict in the medical evidence.11

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective February 15, 2018.

In a report dated October 26, 2016, Dr. Bender reviewed the MRI scans and requested that 

OWCP upgrade the accepted conditions to include lumbar intervertebral disc degeneration, lumbar 

inflammatory spondylopathy, lumbar intervertebral disc displacement, a tear of the right lateral 

meniscus, unilateral primary osteoarthritis of the right knee, juvenile osteochondrosis of the right 

tibia and fibula, a right knee subluxation, a left foot contusion, primary osteoarthritis of the left 

foot and ankle, bursitis of the right ankle and foot, a bone cyst of the right ankle and foot, tarsal 

tunnel syndrome of the lower limb, and primary osteoarthritis of the right ankle. In an 

accompanying report of even date, he provided the same diagnoses and found that appellant could 

perform sedentary work with restrictions. On January 17, 2017 Dr. Bender opined that appellant 

was disabled from employment.

OWCP referred appellant to Dr. Vanapalli for a second opinion examination. It requested 

that he review Dr. Bender’s report and identify the employment-related conditions. OWCP further 

indicated that appellant had not complained of an injury to his back; however, it accepted low back 

strain as employment related.

On May 4, 2017 Dr. Vanapalli diagnosed as employment related bursitis of the right 

shoulder and bilateral hips, instability of the right knee, low back strain, and plantar fibromatosis. 

He found that appellant had no objective evidence of bursitis, tarsal tunnel syndrome, a right knee 

condition, low back strain, or a hip condition. Dr. Vanapalli further opined that his plantar fascial 

fibromatosis resulted from flat feet and were unrelated to employment. He provided work 

restrictions. Dr. Vanapalli, however, did not directly address whether the acceptance of appellant’s 

claim should be expanded to include the additional conditions diagnosed by Dr. Bender.

OWCP determined that a conflict in medical opinion arose between Dr. Vanapalli, an 

OWCP referral physician, and Dr. Bender, appellant’s physician, regarding appellant’s current 

employment-related disability. It referred appellant to Dr. Wood for an impartial medical 

examination and, based on Dr. Wood’s opinion, terminated appellant’s compensation and 

entitlement to medical treatment. OWCP did not, however, resolve the issue of claim expansion 

prior to terminating appellant’s compensation benefits.

 

10 5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 

317 (1994).

11 D.B., Docket No. 19-0663 (issued August 27, 2020).
8

Once OWCP undertakes development of the medical evidence, it has the responsibility to 

do so in a manner that will resolve the relevant issues in the case.12 It failed to fully develop the 

issue of claim expansion to determine whether it should expand acceptance of the claim to include 

the additional conditions diagnosed by Dr. Bender and whether, if established, these conditions 

resulted in continuing disability from employment or the need for medical treatment.13 

For the above-stated reasons, OWCP has not met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits.14

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective February 15, 2018.15

 

12 See R.B., Docket No. 20-0109 (issued June 25, 2020); B.W., Docket No. 19-0965 (issued December 3, 2019).

13 See B.W., Docket No. 20-1033 (issued November 30, 2020); J.T., Docket No. 19-1723 (issued August 24, 2020).

14 J.T., id.

15 In view of the Board’s disposition of issue 1, issue 2 is moot.
9

ORDER

IT IS HEREBY ORDERED THAT the July 13, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: April 12, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board