United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Vero Beach, FL, Employer

__________________________________________

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Docket No. 18-1191

Issued: April 15, 2020

Appearances: Case Submitted on the Record

Ronald S. Webster, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 21, 2018 appellant, through counsel, filed a timely appeal from an April 19, 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 April19, 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The issue is whether OWCP properly rescinded acceptance of conditions related to 

appellant’s June 15, 2016 employment injury. 

FACTUAL HISTORY

On June 15, 2016 appellant, then a 40-year-old carrier technician, filed a traumatic injury

claim (Form CA-1) alleging that she sustained a neck strain that day when her mail truck was 

struck by a car backing out of a residential driveway while in the performance of duty. She stopped 

work that day. 

The employing establishment properly executed an authorization for examination and/or 

treatment (Form CA-16) on June 15, 2016. 

By decision dated December 20, 2016, OWCP accepted appellant’s claim for spondylosis 

without myelopathy or radiculopathy of the cervical region and other spondylosis with myelopathy 

of the cervical region. It found that causal relationship had been established based on a

“November 16, 2016” report in which Dr. Donald Vliegenthart, an orthopedic surgeon, opined that 

appellant’s history, neurologic and physical examination, and objective magnetic resonance 

imaging (MRI) scan findings in the cervical spine were 100 percent consistent with injury 

causation being due to a motor vehicle accident that occurred on June 15, 2016.4

On January 24, 2017 OWCP referred appellant to Dr. Jeffrey T. O’Brien, a Board-certified 

orthopedist, for a second opinion evaluation. It provided a statement of accepted facts (SOAF) 

and a series of questions to Dr. O’Brien asking him to determine the nature and extent of any workrelated conditions, and opine whether she was capable of returning to full-duty employment. 

In a February 17, 2017 report, Dr. O’Brien discussed appellant’s work history and her 

complaints of postsurgical right shoulder pain, lower back pain, and radiating neck pain. Cervical 

spine examination demonstrated tenderness on the right with muscle spasms and limited range of 

motion. The upper extremities showed normal strength and a normal sensory examination. 

Lumbar spine examination was negative. Dr. O’Brien diagnosed degenerative disc disease of the 

cervical and lumbar spine and acute postoperative pain of the right shoulder. In answer to OWCP’s 

question as to whether cervical spondylosis was “a result of the one day injury of June 15, 2016,”

he opined that cervical spondylosis was age-related wear and tear of the spinal discs in the cervical 

spine, and that the mechanism of injury described, being struck from behind in a vehicle, had not 

caused degeneration of the spine. Dr. O’Brien indicated that appellant’s complaints and physical 

examination were consistent with his diagnoses, noting that the cervical MRI scan demonstrated a 

natural process of wear and tear. He advised that there was no evidence of an acute injury to the 

cervical spine and that objective diagnostic studies revealed a degenerative process. Dr. O’Brien 

further noted that there was no objective evidence that appellant sustained an injury to her hip and 

low back. He noted that the history, mechanism of injury and diagnostic studies did not support 

an acute injury to the right shoulder. Dr. O’Brien advised that appellant had no restrictions as a 

result of cervical spondylosis, but that she could only work four hours a day with a five-pound 

 

4 By decision dated August 3, 2016, OWCP had previously denied appellant’s claim.
3

lifting restriction for eight weeks following her shoulder surgery. In an accompanying work 

capacity evaluation (Form OWCP-5c) dated February 27, 2017, he repeated his restrictions. 

On March 29, 2017 OWCP proposed to rescind its prior acceptance of appellant’s claim 

for spondylosis without myelopathy or radiculopathy of the cervical region and other spondylosis 

with myelopathy cervical region because it was accepted in error. It explained that a November 16, 

2016 report from Dr. Vliegenthart, upon which the claim was accepted, did not exist.5 OWCP 

further found that Dr. Vliegenthart’s November 3, 2016 report was insufficient to establish that 

the one-time traumatic incident caused, contributed to, or aggravated the accepted cervical 

condition because he failed to provide a full medical history of treatment for a prior condition and 

failed to pathophysiologically explain how the motor vehicle accident caused or contributed to the 

diagnosed spondylosis. It noted that this was important because preexisting degenerative disc 

disease was found on the August 15, 2016 cervical spine MRI scan. OWCP concluded that the 

second-opinion physician, Dr. O’Brien, provided a definitive medical opinion that invalidated the 

original acceptance. 

On April 5, 2017 appellant, through counsel, disagreed with the proposed rescission of the 

acceptance of the claim maintaining that the reports of Dr. Anthony J. Lombardo, Board-certified 

in orthopedic surgery, and Dr. Vliegenthart were sufficient to establish causal relationship and 

noted that the burden was on OWCP to rescind acceptance. Counsel further asserted that OWCP 

should have accepted the right shoulder rotator cuff tear and the superior labral anterior to posterior 

(SLAP) tear and corrective procedure because Dr. Lombardo, Dr. Vliegenthart, and Dr. O’Brien, 

supported this condition as work related.

By report dated April 18, 2017, Dr. Vliegenthart diagnosed cervicalgia, right shoulder 

pain, low back pain, herniated disc at C6-7 with cord contact, and foraminal stenosis. He opined 

that appellant was unable to work.

On April 28, 2017 Dr. James Billys, Board-certified in orthopedic surgery, noted the 

history of employment injury after which appellant experienced continuing severe axial cervical 

pain on the right side that radiated into her right arm with numbness and tingling. He described 

examination findings of joint pain, diminished sensation on the radial and ulnar aspects of her right 

arm, positive Tinel’s sign over the right carpal tunnel, and tenderness over the paracervical region. 

Dr. Billys diagnosed cervical radiculopathy and recommended an electromyogram and nerve 

conduction velocity (EMG/NCV) study and a cervical spine MRI scan.

By decision dated May 5, 2017, OWCP finalized the rescission of the acceptance of 

appellant’s claim for spondylosis without myelopathy or radiculopathy cervical region and other 

spondylosis with myelopathy cervical region, finding that it was erroneously accepted.

On May 12, 2017 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

 

5 OWCP referenced a November 16, 2016 report which it indicated was not of record. However, the record contains 

a November 17, 2016 addendum report byDr.Vliegenthart, typed at the top and bottom of a November 3, 2016 report. 
4

Additional medical evidence included reports by Casey W. Langel, a physician assistant, 

who saw appellant for postoperative treatment following her shoulder surgery.

A May 9, 2017 cervical spine MRI scan demonstrated C6-7 central disc herniation with 

mild effacement of ventral thecal sac and loss of lordotic curvature, possible muscle spasm. A

May 19, 2017 EMG/NCV revealed no abnormalities.

In a June 19, 2017 report, Dr. Billys noted that since the June 15, 2016 motor vehicle 

accident (MVA) appellant had axial cervical pain and cervicogenic. He indicated that examination 

findings were unchanged from his prior report and diagnosed arthropathy of the cervical spine 

facet joint. Dr. Billys opined that, based on his review of x-rays and appellant’s history, her 

condition was definitely work related and not related to age or arthritic change.

On June 22, 2017 Dr. Syed Farhan Zaidi, who practices physical medicine and 

rehabilitation, noted the history of injury and appellant’s complaint of severe cervical pain, mainly 

on the right. He described examination findings, diagnosed cervical radiculopathy, and 

recommended additional studies. 

In a preoperative report dated September 25, 2017, Ms. Langel reported that Dr. Billys 

would perform cervical surgery the following day.6

At the October 16, 2017 hearing, counsel asserted that the medical evidence established 

that appellant’s diagnosed conditions were related to the June 15, 2016 MVA. Appellant testified 

regarding the employment injury and her medical condition. She reported that Dr. Billys 

performed cervical spine surgery on September 26, 2017.

OWCP subsequently received reports dated October 23 and November 6, 2017 in which

Ms. Langel discussed appellant’s cervical condition following surgery.

By decision dated November 30, 2017, an OWCP hearing representative affirmed the 

decision dated May 5, 2017 rescinding acceptance of spondylosis without myelopathy or 

radiculopathy cervical region and other spondylosis with myelopathy cervical region. She added 

that, upon return of the case record, OWCP should render a decision on all other conditions 

claimed.

On January 23, 2018 appellant, through counsel, requested reconsideration. He referred to

Dr. Vliegenthart’s November 17, 2016 report and maintained that the medical evidence 

established that the rescission was in error.

In a report dated January 10, 2018, Dr. Billys noted appellant’s complaints of neck and 

lower back pain. He described physical examination findings and diagnosed neck pain, cervical 

radiculopathy, low back pain, and bilateral carpal tunnel syndrome. 

In a letter of even date, Dr. Billys advised that he had been treating appellant for many 

months and had reviewed Dr. O’Brien’s report. He noted that the impact of the accident had not 

involved a high speed traumatic event, but maintained that, given a positive MRI scan showing 

 

6 A copy of the operative report is not found in the record as transmittedto the Board.
5

left-sided disc protrusion at C6-7 and the fact that she was reaching her right arm and turning her 

head to the right when struck, this caused her body to be forced quickly backward, and these forces 

were consistent with and caused the MRI scan findings, confirmed by his physical examination. 

Dr. Billys noted that there was no prior history of injury to this area and diagnosed, within a 

reasonable degree of medical certainty, neck pain, cervicalgia, radiculopathy, directly related to 

the June 15, 2016 accident. He indicated that appellant’s pain and discomfort was likely not from 

moderate degenerative disc disease, opining that it was from her herniated cervical disc. Dr. Billys 

reported that, while he was mainly focused on appellant’s cervical problems, after reviewing 

medical evidence from other physicians, including Dr. Vliegenthart, there was also definite 

causation between the low back and shoulder diagnoses, noting that the mechanism of injury, even 

with a low speed impact, clearly provided the energy needed to alter appellant’s spinal and 

shoulder anatomy and cause or contribute to these additional diagnoses. He concluded that the 

surgeries performed on appellant’s shoulder and cervical area were reasonable and necessary.

By decision dated April 19, 2018, OWCP denied modification of the November 30, 2017 

decision.

LEGAL PRECEDENT

Section 8128 of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on his or her own motion or on application.7 The 

Board has upheld OWCP’s authority under this section to reopen a claim at any time on its own 

motion and, where supported by the evidence, set aside or modify a prior decision and issue a new 

decision.8 The Board has noted, however, that the power to annul an award is not arbitrary and 

that an award for compensation can only be set aside in the manner provided by the compensation 

statute.9

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation agency and in conformity with statutory provision, 

where there is good cause for so doing, such as mistake or fraud. Once OWCP accepts a claim, it 

has the burden of justifying termination or modification of compensation benefits. This also holds 

true where OWCP later decides that it erroneously accepted a claim.10

OWCP bears the burden of justifying rescission of acceptance on the basis of new evidence, 

legal argument and/or rationale.11 Probative and substantial positive evidence or sufficient legal 

argument must establish that the original determination was erroneous. OWCP must also provide 

a clear explanation of the rationale for rescission.12

 

7

5 U.S.C. § 8128.

8

See W.H., Docket No. 17-1390 (issued April23, 2018); 20 C.F.R. § 10.610.

9 D.W., Docket No. 17-1535 (issued February 12, 2018).

10 V.R., Docket No. 18-1179 (issued June 11, 2019).

11 See L.G., Docket No. 17-0124 (issued May 1, 2018).

12 W.H., supra note 8.
6

ANALYSIS

The Board finds that OWCP has not met its burden of proof to rescind acceptance of 

conditions related to appellant’s June 15, 2016 employment injury. 

In support of its rescission of the acceptance of appellant’s claim OWCP relied upon the 

medical opinion of Dr. O’Brien, a second opinion physician. In his February 17, 2017 report,

Dr. O’Brien responded to OWCP’s question as to whether cervical spondylosis was “a result of 

the one day injury of June 15, 2016,” opining that cervical spondylosis was age-related wear and 

tear of the spinal discs in the cervical spine, and that the mechanism of injury described, being 

struck from behind in a vehicle, had not caused degeneration of the spine. He noted that the 

history, mechanism of injury and diagnostic studies did not support an acute injury to the right 

shoulder. 

The Board finds that the report of Dr. O’Brien was insufficient to establish a basis for the 

rescission of appellant’s claim as his report does not establish that an error had been made in its 

acceptance. Upon referral of the medical record to Dr. O’Brien, OWCP provided a SOAF dated 

January 19, 2017. The Board finds that Dr. O’Brien’s opinion contradicts the SOAF. The SOAF 

made clear that OWCP had accepted, as work related, appellant’s conditions of spondylosis 

without myelopathy or radiculopathy of the cervical region and other spondylosis with myelopathy 

of the cervical region, as a result of his federal employment. OWCP procedures13 provide that, 

when a physician selected by OWCP renders a medical opinion based on a SOAF which is 

incomplete or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, 

the probative value of the opinion is seriously diminished or negated altogether.14 In his report

Dr. O’Brien disregarded the accepted conditions noted in the SOAF, and instead opined in 

response to OWCP’s questions that she had not sustained an employment-related injury and 

instead had age-related conditions. However, OWCP has already accepted that appellant’s workrelated activities resulted in the accepted conditions contained in the SOAF and that decision was 

not based upon a factual error or fraud. As such, Dr. O’Brien failed to follow the accepted 

conditions as set forth in the SOAF and therefore his opinion is insufficient as a basis to rescind 

the claim. 

The Board, therefore, concludes that OWCP has not met its burden of proof to rescind 

acceptance of appellant’s claim, and its rescission of appellant’s claim must be reversed.15

 

13 See Federal (FECA) Procedure Manual, Part 2 -- Case/Disability Management, Developing and Evaluating 

Medical Evidence, Chapter 2.810.11 (September 2010).

14 D.M., Docket No. 17-1563 (issued January 15, 2019); E.G., Docket No. 12-1011 (issued November 28, 2012).

15 The Board notes that in the November 30, 2017 decision, an OWCP hearing representative advised OWCP that, 

upon return of the case record, it should render a decision on all other conditions claimed. The record before the 

Board does not indicate that OWCP has issued a final decision addressing appellant’s additional claimed conditions.
7

CONCLUSION

The Board finds that OWCP has not met its burden of proof to rescind acceptance of 

conditions related to appellant’s June 15, 2016 employment injury.

16

ORDER

IT IS HEREBY ORDERED THAT the April 19, 2018 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: April 15, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 The Board notes that the employing establishment issued a FormCA-16. A properly executed FormCA-16may 

constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. The 

form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the 

examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 17-

1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).