United States Department of Labor

Employees’ Compensation Appeals Board

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R.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Miami, FL, Employer

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Docket No. 18-0342

Issued: November 29, 2018

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 6, 2017 appellant filed a timely appeal from a December 1, 2017 merit

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective March 10, 2017.

FACTUAL HISTORY

On July 11, 2002 appellant, then a 56-year-old mail carrier, filed a traumatic injury claim

(Form CA-1) alleging that, while walking in rubber boots on that date, he slipped and fell, causing 

 

1 5 U.S.C. § 8101 et seq.
2

injury to his left ankle and the right side of his back in the performance of duty.2 He stopped work 

on July 12, 2002.

OWCP accepted the claim for left ankle contusion and lumbar sciatica.3 Appellant was 

released to part-time work for two to three hours per day on November 20, 2002. 

On a February 11, 2003 work capacity evaluation form (Form OWCP-5c) Dr. Kenneth 

Hodor, a Board-certified orthopedic surgeon, noted that appellant could not perform his duties as 

a letter carrier and restricted him to sedentary level work. He noted appellant could work for two 

hours at a time when sitting with the ability to get up and move about with light walking. On 

February 27, 2003 Dr. Hodor responded to an OWCP letter noting that, from an orthopedic 

standpoint, appellant was unable to perform an eight-hour workday and he could not perform the

limited-duty job which had been created by the employing establishment.

Appellant had returned to work on February 3, 2003, but stopped work again on 

February 6, 2003 and has not returned. OWCP subsequently paid wage-loss compensation on the 

periodic rolls.

In April 2005, appellant was scheduled for a second opinion examination for OWCP to 

determine his physical condition and his ability to return to work. In a report dated April 5, 2005,

Dr. Jerry S. Sher, a Board-certified orthopedic surgeon, noted that appellant had reached maximum 

medical improvement (MMI) with no residuals in his left ankle, but that his lumbar spine condition 

persisted and was chronic. He concluded that appellant was able to return to a full eight-hour 

workday with restrictions. OWCP determined that a conflict had been created in the medical 

evidence between Dr. Hodor and Dr. Sher as to appellant’s residuals from his injury as well as his 

ability to return to work for an eight-hour workday. In a report dated September 9, 2005,

Dr. Mitchell R. Pollak, an impartial medical examiner Board-certified in orthopedic and 

arthroscopic surgery, noted that appellant’s diagnosed conditions included lumbar spondylosis, 

lumbar strain with lumbar disc bulging at the L4-5 and L5-S1 levels, and a resolved left ankle 

condition. He noted that appellant was able to work, but with restrictions to avoid heavy lifting, 

bending, prolonged standing, and/or walking.

Appellant continued to seek treatment with his attending physician. In a note dated July 7, 

2008, Dr. Hodor examined appellant and noted that he was able to ambulate with a standard cane, 

but observed that there was no isolated motor weakness at either lower extremity. He noted that 

appellant had relocated to Arkansas where he lived with his wife in the woods, as he stated that he 

could not get along with people. Medications were noted to be limited to Tylenol two to three 

times per day. Dr. Hodor concluded that at that juncture appellant remained fully retired and was 

unable to work in his previous job or in any work due to his inability to sit, stand, squat, or bend 

with his lifting restrictions.

 

2 Appellant has a history of asthma, peptic ulcer disease, gastrointestinal bleeding, hepatitis, hypertension, and 

arthritis. He also noted that he sustained a back injury when he was “blown off” a bunker while serving in Vietnam 

in 1966.

3 The record reflects that appellant had preexisting lumbar spondylosis with degenerative disc disease and stenosis.
3

On July 27, 2011 OWCP notified appellant that it had scheduled a second opinion medical

evaluation to assess the status of his work-related condition, including the extent of disability and 

appropriate treatment. In a report dated October 5, 2011, Dr. Thomas P. Rooney, a second opinion 

physician Board-certified in orthopedic surgery, noted his findings on physical examination. He 

reported that appellant was cooperative, tearful, anxious, and continuously groaned and jerked his 

body. Appellant was able to stand and walk with most of his weight on a cane. Upon standing,

his cervical, thoracic, and lumbar spine was noted to have normal curvature. Appellant was noted 

to complain of pain mostly in the lumbosacral spine, but straight leg raising, sitting, and supine 

were all negative. There was no swelling in the left ankle and there was full motion with no 

instability. Dr. Rooney concluded that appellant was able to return to work in his regular position 

for eight hours per day. 

In a June 2, 2014 report, Dr. Hodor noted that he saw appellant, who was ambulating with 

a standard cane in his right hand. He explained that appellant and his wife were still living in 

Arkansas, which took about three days for them to drive in to Florida. Dr. Hodor indicated that 

appellant had to change position frequently because of the persistent pain and burning sensation 

to the right of the midline at L4-5, L5-S1. He also noted that the pain radiated into the right lower 

extremity primarily in the S1-S2 dermatome, but at times overlying the L5 dermatome proximal 

to the knee. Dr. Hodor advised that appellant was placed on hypnotic now, which helped with his 

mood swings and agitation, which he noted were improved. He also indicated that appellant was 

on blood pressure medication with no recent history of any problems in conjunction with the 

medication he was taking for his ongoing orthopedic problem. Dr. Hodor indicated that 

appellant’s pain was primarily neuropathic in type with a sharp and shooting electric-type 

sensation more to the right of the midline than left. He examined appellant and found that he had 

difficulty bearing full weight on the right often keeping his heel off the ground. Dr. Hodor 

explained that appellant related that it was easier for him to ambulate, but he explained to appellant

the importance of heel, foot flat, and push off gait to avoid progressive difficulty. He also found 

ongoing hypertonicity within the paraspinal muscles at L3-4, L4-5, L5-S1; restricted motion by 50

percent in the left lateral bending and left lateral rotation. Dr. Hodor also indicated that appellant 

had a positive right seated straight leg raise, negative on the left; intact motor power and 

diminished appreciation to pinwheel in the L5-S1 dermatome distal to the knee. He advised that 

he had explained the importance of appellant continuing his range of motion exercises for his back 

and advised him to try and find a gym that had an aquatic facility. Dr. Hodor also noted that 

appellant was keeping his weight fairly stable and he had no adverse effects from his antiinflammatories. He related that he also prescribed Tramadol since appellant indicated that at times 

the Naprosyn was not enough to eliminate all of his pain. Dr. Hodor indicated that he would see 

appellant again in nine months.

OWCP continued to develop the claim and requested periodic updates. In the May 1, 2014 

letter, it requested that appellant provide the letter to his physician for review and a comprehensive 

medical report. OWCP requested an update with regard to whether the accepted work-related 

conditions were still active and causing objective symptoms. It also requested that he provide an 

update regarding appellant’s ability to work.

By letters dated June 29 and July 1, 2016, OWCP referred appellant for a second opinion

to assess the work-related condition. Dr. William F. Blankenship, a second opinion physician
4

Board-certified orthopedic surgery, was provided a SOAF, a set of questions, and the medical 

record.

In a July 28, 2016 report, Dr. Blankenship noted his evaluation findings and reported that 

appellant carried a cane on the right and had on a rigid cervical collar. He found no list, scoliosis, 

or paraspinal muscle spasm, however, he noted that appellant indicated that his back hurts even in 

the standing position. Dr. Blankenship found that clinically, no paraspinal muscle spasm could be 

seen or palpated, the knee and ankle jerks were depressed, but equal bilaterally and straight leg 

raising was negative bilaterally. He found no clonus or Babinski on either side. It was also 

observed that there was no weakness of the anterior tibialis, extensor halluces tongue, short toe 

flexors, or peroneals on either side. 

Dr. Blankenship revealed that his examination of the left ankle demonstrated no swelling 

or deformity and there was a negative Thompson’s test on the left ankle in which compression of

the call produced passive plantar flexion of the left foot and ankle. He found active dorsiflexion 

was neutral and active plantar flexion was to 60 degrees past neutral. Dr. Blankenship diagnosed 

sprain of left ankle, resolved and lumbosacral strain by history. He opined that the subjective 

complaints remained what appellant exhibited, however, he found no objective findings of 

radiculopathy regarding appellant’s lower back complaints. Dr. Blankenship also indicated that 

the left ankle injury had resolved and would have resolved within 14 to 21 weeks of injury. He

advised that there were no other conditions that were associated with or could be aggravated by 

his lower back and left ankle injuries, except for his preexisting back condition. Dr. Blankenship

noted that appellant was still taking medication for that prior injury, which occurred in 1994. He

concluded that there was no objective basis for an aggravation of a preexisting condition. 

Dr. Blankenship further advised that there was no basis why he could not resume activities or full 

duties. He opined that, with appellant’s large amount of subjective complaints, it was doubtful 

that he would ever return to restricted duty. Dr. Blankenship noted that appellant briefly returned 

to work and only worked one day.

On February 7, 2017 OWCP proposed to terminate appellant’s wage-loss compensation

and medical benefits based upon the findings of the second opinion specialist, Dr. Blankenship. It 

found that the weight of the medical evidence established that he no longer had residuals or 

continuing disability from work due to his accepted employment injury. OWCP afforded him 30 

days to submit additional evidence or argument if he disagreed with the proposed termination.

Appellant submitted a letter dated February 28, 2017 requesting additional time to obtain 

additional medical evidence. He also described his condition and indicated that he continued to 

live with pain from his injuries. Appellant also noted that he had been found 100 percent disabled 

by the Department of Veterans Affairs. He also indicated that as far back as 2002, Dr. Hodor had 

diagnosed lumbar radiculitis.

Appellant also submitted evidence previously of record. OWCP received a copy of an 

August 27, 2002 report from Dr. Hodor, who diagnosed lumbar radiculitis and checked a box 

marked “yes” advising that it was caused or aggravated by an employment activity. It also received 

a copy of Dr. Hodor’s June 2, 2014 report and a form of the same date
5

On March 10, 2017 OWCP finalized the termination of appellant’s wage-loss 

compensation and medical benefits, effective that date, finding that the medical evidence of record 

failed to support continued residuals related to the work injury of July 11, 2002. It relied upon the 

report of the second opinion physician, Dr. Blankenship, an orthopedic surgeon. OWCP explained 

that the residuals related to the accepted work-related medical conditions had ceased and appellant

was no longer disabled from work as a result of the accepted injury on July 11, 2002. It found that

Dr. Blankenship provided a well-reasoned and unequivocal medical opinion based upon a 

complete, accurate, and consistent history covering both factual and medical aspects of the case. 

On March 21, 2017 appellant requested an oral hearing, which was held before an OWCP 

hearing representative on September 18, 2017. No new evidence was received.

By decision dated December 1, 2017, OWCP’s hearing representative affirmed the 

March 10, 2017 decision. She found that the report from Dr. Blankenship was unequivocal and 

sufficient to carry the weight of the medical evidence.

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify 

modification or termination of benefits.4 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation without 

establishing either that the disability has ceased or that it is no longer related to the employment.5 

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

to compensation for disability.6 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition which require 

further medical treatment.7

ANALYSIS

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective March 10, 2017.

The Board finds that Dr. Blankenship’s July 28, 2016 second opinion report is sufficiently 

well-rationalized and based upon a proper factual background such that it is entitled to carry the 

weight in establishing that residuals of appellant’s employment injuries had ceased.

Dr. Blankenship provided an extensive review of appellant’s medical history, which included a 

preexisting back condition, and reported his examination findings. He explained appellant 

exhibited subjective complaints, but he found no objective findings of radiculopathy regarding 

appellant’s lower back complaints. Dr. Blankenship also indicated that the left ankle injury had 

resolved and would have resolved within 14 to 21 weeks of the date of injury. He advised that 

 

4 Curtis Hall, 45 ECAB 316 (1994). 

5

Jason C. Armstrong, 40 ECAB 907 (1989). 

6 Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981). 

7 Calvin S. Mays, 39 ECAB 993 (1988). 
6

there were no other conditions that were associated with or could be aggravated by his lower back 

and left ankle injuries, except for his stated preinjury before the July 11, 2002 employment injury. 

Dr. Blankenship noted that appellant was still taking medication for that injury, which occurred in 

1994. He concluded that there was no objective basis for an aggravation of a preexisting condition. 

Dr. Blankenship further explained that there was no basis why appellant could not resume 

activities or full duties. He opined that with appellant’s large amount of subjective complaints, it 

was doubtful that he would ever return to restricted duty. Dr. Blankenship noted that appellant 

briefly returned to work and only worked one day. He explained that there were no objective 

findings to support appellant’s subjective complaints in the lumbar spine and the left ankle 

condition had resolved. 

Subsequent to the evaluation by Dr. Blankenship and prior to the termination of benefits, 

OWCP received copies of reports from Dr. Hodor dated August 27, 2002 and June 2, 2014. The 

Board notes that these reports were previously of record. Moreover, the reports were from several 

years prior to the termination and were irrelevant as they did not offer any opinion about the nature 

or extent of appellant’s disability on or after March 10, 2017.8 Thus, the additional reports from

Dr. Hodor are insufficient to overcome or create a new conflict with the opinion of

Dr. Blankenship.

The Board finds Dr. Blankenship’s opinion to be probative evidence and reliable and 

sufficient to justify OWCP’s termination of appellant’s wage-loss compensation and medical 

benefits for the accepted conditions of left ankle contusion and lumbar sciatica. There is no 

contemporaneous medical evidence of equal weight supporting appellant’s claim for continuing 

disability compensation and medical benefits.9

On appeal appellant asserts that he continued to suffer from his employment-related 

conditions and that Dr. Blankenship’s opinion was insufficient to meet OWCP’s burden of proof 

to terminate his compensation and medical benefits. As found above, it met its burden of proof to 

justify termination of benefits, effective March 10, 2017, as the medical evidence established that 

appellant ceased to have any disability or condition causally related to the accepted employment 

injuries.

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective March 10, 2017. 

 

8 See L.V., Docket No. 17-1260 (issued August 1, 2018).

9 See K.E., Docket No. 17-1216 (issued February 22, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the December 1, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 29, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board