United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bristol, PA, Employer

__________________________________________

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Docket No. 20-0892

Issued: July 9, 2021

Appearances: Case Submitted on the Record

Kevin Card, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 17, 2020 appellant, through his representative, filed a timely appeal from a

February 11, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

 

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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, he asserted that oral argument should be granted because OWCP never 

explored the issue of appellant’s opioid use and the effect on his employment when it terminated benefits. The Board, 

in exercising its discretion, denies appellant’s request for oral argument because this matter requires an evaluation of 

the medical evidence presented. As such, the arguments on appeal can adequately be addressed in a decision based 

on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not 

serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as 

submitted to the Board.
2

Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish continuing, 

employment-related residuals or disability on or after September 23, 2014 causally related to his 

June 14, 2013 employment injury; and (2) whether appellant has met his burden of proof to expand 

the acceptance of his claim to include an additional condition causally related to the accepted 

June 14, 2013 employment injury. 

FACTUAL HISTORY

This case has previously been before the Board.

4

 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below. 

On June 14, 2013 appellant, then a 52-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, he injured his lower back when he lifted a heavy, broken 

truck back door while in the performance of duty.5 He stopped work on June 14, 2013 and has not 

returned. OWCP accepted the claim for a lumbar sprain and subsequently expanded the 

acceptance of the claim to include aggravation of degenerative disc disease lumbosacral 

intervertebral disc. It paid appellant wage-loss compensation benefits on the supplemental rolls as 

of July 31, 2013, and on the periodic rolls as of January 12, 2014.

On August 2, 2014 OWCP issued appellant a notice of proposed termination, proposing to 

terminate his wage-loss compensation and medical benefits as his employment-related residuals 

and disability had ceased. 

By decision dated September 23, 2014, OWCP finalized the termination of appellant’s 

wage-loss compensation and medical benefits, effective that date. It determined that the special 

weight of the medical opinion evidence rested with the June 23, 2014 opinion of Dr. Richard 

Schmidt, a Board-certified orthopedic surgeon, and impartial medical examiner (IME). 

Dr. Schmidt concluded that appellant no longer had residuals or disability due to his accepted 

 

3 5 U.S.C. § 8101 et seq.

4 Docket No. 18-0414 (issued November 14, 2018).

5 OWCP assigned the present claim OWCP File No. xxxxxx104. It previously accepted that appellant sustained a 

lumbar strain on June 29, 2004 under OWCP File No. xxxxxx649. In 2008, appellant underwent a bilateral 

laminectomy foraminotomy. OWCP also accepted that he sustained a lumbar strain on October 24, 2012 under OWCP 

File No. xxxxxx335. 
3

employment injury, and that there was no indication that appellant required or would benefit from

surgical intervention.6

Appellant requested reconsideration on January 8, 2015 and submitted additional evidence 

from Dr. Thanki. By decision dated April 8, 2015, OWCP denied modification of its 

September 23, 2014 termination decision. It found that Dr. Thanki’s subsequent reports were 

insufficient to establish continuing residuals or disability as he was on one side of the conflict in 

medical opinion and his opinion was not well-reasoned. 

On January 26, 2016 appellant requested reconsideration. In a January 20, 2016 letter, he

argued that he had sustained a consequential injury due to his prescribed medications. Appellant

also alleged that Dr. Schmidt failed to answer questions pertaining to the effect of pain and other 

medication on his ability to work.

By decision dated April 7, 2016, OWCP denied modification of its prior decision. It 

indicated that there was no evidence in the file to support that appellant had either contacted OWCP 

or filed a claim for a consequential injury.

On July 5, 2016 appellant requested reconsideration.

By decision dated September 30, 2016, OWCP denied modification of its prior decision. 

In a May 26, 2017 letter, appellant’s representative requested that the acceptance of 

appellant’s claim be expanded to include the condition of bilateral S1 radiculopathy. OWCP 

received a February 6, 2017 electromyography and nerve conduction velocity (EMG/NCV) study 

which noted bilateral S1 radiculopathies and no evidence of neuropathy.

On June 7, 2017 appellant requested reconsideration. By decision dated September 5, 

2017, OWCP denied modification of its prior decision. 

 

6 On May 22, 2014 OWCP referred appellant, together with a statement of accepted facts (SOAF), the medical 

record, and a list of questions, to Dr. Richard Schmidt, a Board-certified orthopedic surgeon, for an impartial medical 

examination to resolve the conflict in opinion between Dr. Ashokkumar Thanki, a Board-certified neurosurgeon, and 

Dr. Robert F. Draper, a Board-certified orthopedic surgeon and second opinion physician. In a June 23, 2014 report, 

Dr. Schmidt noted the accepted conditions and set forth examination findings. He reviewed the magnetic resonance 

imaging (MRI) studies of November 27, 2013 and July 13, 2014 and indicated that they did not show any significant 

pathology of the L5-S1 discs, but rather showed postoperative changes with no evidence of disc herniation or neural 

compromise. Dr. Schmidt indicated that his review of the November 26, 2013 x-rays showed chronic facet arthritis 

at L5-S1. He also noted that the November 26, 2013 x-ray report indicated some degenerative disc disease at L5-S1 

with facet joint hypertrophy at L5-S1. Dr. Schmidt opined that appellant had recovered from the accepted conditions 

as there was no evidence of any ongoing lumbar strain or any ongoing aggravation of appellant’s intravertebral disc. 

He concluded that there was no indication, need, or benefit for any surgical intervention, which included a lumbar 

laminectomy, foraminotomy, and discectomy. Dr. Schmidt also opined that there was no need for a lumbar interbody 

fusion as there was no evidence of any instability in appellant’s spine and no indication for discectomy or facet 

removal. In a June 23, 2014 work capacity evaluation (Form OWCP-5c), he opined that appellant could resume his 

date-of-injury position with no restrictions.
4

Appellant appealed to the Board on December 21, 2017. By decision dated November 14, 

2018, the Board affirmed OWCP’s September 5, 2017 decision.7 The Board found that OWCP 

properly terminated appellant’s wage-loss compensation and medical benefits effective 

September 23, 2014. The Board reviewed Dr. Thanki’s subsequent reports through May 8, 2017 

and found that these reports were insufficient to establish continuing residuals or disability after 

September 23, 2014 causally related to his June 14, 2013 employment injury. The Board further 

found that Dr. Thanki’s opinion that bilateral S1 radiculopathy was employment related was of 

insufficient probative value to establish that it resulted from the accepted June 14, 2013 

employment injury.

Following the Board’s November 14, 2018 decision, OWCP received an October 29, 2019 

letter from appellant’s representative again requesting that the acceptance of appellant’s claim be 

expanded to include bilateral S1 radiculopathy based on the February 6, 2017 EMG/NCV study 

and Dr. Thanki’s May 8, 2017 report, previously of record. 

On November 13, 2019 appellant, through his representative, requested reconsideration. 

Appellant’s representative provided comments regarding a February 6, 2017 EMG/NCV study and

Dr. Thanki’s May 8, 2017 report, previously of record. The representative also argued that

Dr. Schmidt, the IME, was not provided with a complete history of injury, specifically that 

appellant had an accepted left ankle condition under OWCP File No. xxxxxx492. The 

representative alleged that his prior argument regarding appellant’s long-term prescription opioid 

usage and its effect on his ability to perform his letter carrier duties had not been fully addressed. 

Progress reports from Dr. Thanki dated: September 7, November 10, and November 27, 

2017; March 19, June 21, June 25, July 10, July 26, August 3, August 21, October 29, 

December 17, 2018; and March 14, June 13, and September 19, 2019 were received. In his 

progress reports dated September 7, 2017 through October 29, 2018, Dr. Thanki diagnosed: 

lumbar spondylosis at L5-S1 and bilateral lumbago, intractable pain in the low back, bilateral; and 

bilateral sacroiliac joint pain. He noted excellent results from past radiofrequency denervation 

procedure for pain relief and continued to recommend the procedure, along with alternative forms 

of treatment. Dr. Thanki also completed duty status reports (Form CA-17) dated September 7, 

2017 and July 26, 2018 wherein he related that appellant was unable to return to work in any 

capacity. 

On November 10, 2017, June 25, August 3 and August 21, 2018, Dr. Thanki performed 

radiofrequency denervation of several nerves and the sacroiliac joint.

8

A November 5, 2018 cervical spine x-ray noted mild degenerative changes of cervical 

spine. A cervical spine MRI scan of even date noted multilevel degenerative disc disease with 

disc bulging and spondylote changes and moderate-to-severe narrowing of several neural 

 

7 See supra note 4.

8 This included: the right medial nerve at L3-4, L4-5, and L5-S1 and right sacroiliac joint on November 10, 2017 

and June 25, 2018; left L4-5 and L5-S1 and right L4-5 and L5-S1 and left and right sacroiliac joint on August 3, 2018; 

and the left L3-4, L4-5 and L5-S1 and left sacroiliac joint on August 21, 2018. 
5

foramina. A November 13, 2018 EMG/NCV study indicated bilateral C7 radiculopathies and mild 

bilateral carpal tunnel syndrome. 

In December 17, 2018 and March 14, June 13, and September 19, 2019 reports, Dr. Thanki 

noted appellant’s neurological complaints and that appellant took opioid medication on an as 

needed basis for pain. He noted examination findings and results of the diagnostic testing. 

Dr. Thanki provided an impression of lumbar spondylosis, chronic pain in the low back, cervical 

disc bulge, degenerative disc disease, spondylosis, varying degrees of bilateral neural foraminal 

stenosis at C3-4, C4-5, C5-6, and C6-7, and EMG/NCV evidence of bilateral C7 radiculopathies 

and mild bilateral carpal tunnel syndrome. In CA-17 form reports dated March 14 and 

September 19, 2019, Dr. Thanki opined that appellant was totally disabled due to lower back 

sprain. 

A November 6, 2019 urgent care summary report indicated that appellant was seen by

Dr. Martin Paslqualone, an emergency medical specialist, and diagnosed with lumbar 

radiculopathy. 

Medical reports from Dr. Matthew Tormenti, a Board-certified neurosurgeon, dated 

December 3 and 17, 2019 and February 7, 2020 were also received. In the December 3, 2019 

report, Dr. Tormenti provided impressions of strain of muscle, fascia and tendon of lower back,

radiculopathy, lumbar region and low back pain. He noted that appellant’s symptoms were the 

same since the last visit five years ago from a work-related low back injury that resulted in lumbar 

radiculopathy. Dr. Tormenti also noted that appellant underwent a medically necessary lumbar 

decompression procedure, which helped in his pain, but he was still symptomatic in terms of 

radicular symptoms. He reported that interventional injections provided temporary response and 

that updated diagnostic tests were needed for any surgical indications. In his December 17, 2019 

report, Dr. Tormenti noted that the MRI scan showed persistent foraminal stenosis at L4-5 and L5-

S1 and that the flexion extension films showed a fusion at that level. He opined that appellant 

would benefit from a reexploration and redo decompression with interbody fusion. Dr. Tormenti 

also opined that appellant was disabled and had permanent pain as a result of his injuries. 

In a February 7, 2020 report, Dr. Tormenti reviewed appellant’s medical records, noting 

that he had prior L5-S1 laminectomy in 2008. He reported appellant’s examination results of 

December 17, 2019 and the results of appellant’s diagnostic testing of the lumbar spine. 

Dr. Tormenti opined that, based on his evaluation and his review of appellant’s records, appellant 

had reaggravated his prior low back issue as a result of the June 14, 2013 work incident. He noted 

that conservative therapy failed and appellant underwent a medically necessary bilateral 

laminectomy and foraminotomy at L4-5 and L5-S1 with discectomy at L5-S1 non-instrumented 

fusion on December 11, 2014. Unfortunately, appellant’s persistent pain and disability for over 

six years since his surgery were considered permanent. Dr. Tormenti opined that appellant was 

not able to return to his prior employment as he still had radiographic and clinical nerve root 

compression. He recommended an L5-S1 interbody fusion with instrumentation or permanent 

stimulator implantation, if spinal cord stimulation was successful. Dr. Tormenti opined, if not for 

the employment incident, the medical probability of the surgery would not be necessary.

By decision dated February 11, 2020, OWCP denied modification. It found that the 

medical evidence of record was insufficient to establish that appellant continued to have residuals 
6

or disability causally related to his June 14, 2013 employment injury. OWCP also determined that 

the medical evidence of record was insufficient to establish an additional condition causally related 

to his accepted June 14, 2013 employment injury. 

LEGAL PRECEDENT -- ISSUE 1

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

establish continuing disability or residuals, on or after that date, causally related to the accepted 

injury.9 To establish a 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 

ANALYSIS -- ISSUE 1

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

employment-related residuals or disability on or after September 23, 2014 causally related to his 

June 14, 2013 employment injury.

On prior appeal, the Board reviewed the medical evidence submitted prior to OWCP’s 

September 5, 2017 decision. The Board found that OWCP properly terminated appellant’s wageloss compensation and medical benefits because he did not have residuals or disability due to his 

accepted June 14, 2013 employment injury. The special weight of the medical opinion evidence 

rested with the June 23, 2014 opinion of Dr. Schmidt, who had conducted an impartial medical 

examination. The Board further found that the medical evidence submitted after the September 23, 

2014 termination decision was insufficient to establish continuing residuals or disability due to the 

June 14, 2013 employment injury.11 The Board notes that it is unnecessary to consider the 

evidence that was previously considered in its November 14, 2018 decision. Findings made in 

prior Board decisions are res judicata, absent any further review by OWCP under section 8128 of 

FECA.12

Following the Board’s November 14, 2018 decision, appellant, through his representative, 

requested reconsideration and submitted additional evidence. 

In his December 3, 2019 report, Dr. Tormenti provided impressions of strain of muscle, 

fascia and tendon of lower back; radiculopathy, lumbar region and low back pain. He noted that 

appellant’s symptoms were the same since the last visit five years ago from a work-related low 

back injury that resulted in lumbar radiculopathy and a medically necessary lumbar decompression 

procedure. Dr. Tormenti opined, in his December 17, 2019 report, that appellant would benefit 

 

9 See J.R., Docket No. 20-0211 (issued November 5, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019); 

Manuel Gill, 52 ECAB 282 (2001).

10 L.S., Docket No. 19-0959 (issued September 24, 2019); C.L., Docket No. 18-1379 (issued February 3, 2019); 

T.M., Docket No. 08-0975 (issued February 6, 2009).

11 Supra note 4.

12 C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).
7

from a reexploration and redo decompression with interbody fusion. While he opined that 

appellant was disabled and had permanent pain as a result of his injuries, the Board notes that 

OWCP did not authorize the December 11, 2014 L5-S1 non-instrumented fusion. Furthermore,

Dr. Tormenti did not provide rationale for his causation finding and disability determination before 

and after the unauthorized December 11, 2014 L5-S1 non-instrumented fusion as well as the 

necessity for a new surgery and, thus, his opinion is of little probative value.13

In a February 7, 2020 report, Dr. Tormenti opined that appellant had reaggravated his prior 

low back issue as a result of the June 14, 2013 work incident, noting that appellant had permanent 

persistent pain and disability six years after the December 11, 2014 L5-S1 non-instrumented 

fusion. While he opined that appellant was not able to return to his prior employment due to 

clinical nerve root compression and additional surgery was required, Dr. Tormenti again has not 

provided a reasoned medical explanation with objective findings as to why appellant was unable 

to perform the duties of his position or explained how or why the additional surgery is causally 

related to the accepted employment injury.14 Thus, Dr. Tormenti’s reports are insufficient to 

overcome the special weight of the opinion of Dr. Schmidt, the IME, or to create a new conflict in 

medical opinion. 

Appellant also submitted continuing progress reports from Dr. Thanki, who diagnosed: 

lumbar spondylosis at L5-S1 and bilateral lumbago, intractable bilateral pain in the low back; 

bilateral sacroiliac joint pain and, following diagnostic testing, additionally diagnosed, cervical 

disc bulge, degenerative disc disease, spondylosis and varying degree of bilateral neural foraminal 

stenosis, C3-4, C4-5, C5-6, and C6-7; and EMG/NCV evidence of bilateral C7 radiculopathies and 

mild bilateral carpal tunnel syndrome. However, Dr. Thanki was on one side of the conflict, which

Dr. Schmidt had resolved. The Board has held that reports from a physician who was on one side 

of a medical conflict are generally insufficient to overcome the special weight accorded to the 

IME, or to create a new conflict.15 An analysis of Dr. Thanki’s medical progress notes show that

Dr. Thanki did not address whether appellant was disabled from employment or required further 

medical treatment due to his accepted June 14, 2013 employment injury. Thus, his opinion is of 

no probative value.16 While Dr. Thanki opined in March 14 and September 19, 2019 CA-17 forms 

that appellant was totally disabled from work, he again did not address the relevant issue of 

whether appellant had continued residuals or disability of his accepted June 14, 2013 employmentrelated injury.

17

 

 

13 A.T., Docket No. 20-0334 (issued October 8, 2020) (a medical report is of limited probative value on a given 

medical issue if it contains a medical opinion which is unsupported by medical rationale).

14 Id.

15 See Y.I., Docket No. 20-0263 (issued November 30, 2020); C.L., Docket No. 18-1379 (issued February 5, 2019); 

I.J., 59 ECAB 408 (2008).

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

17 Id.
8

The November 6, 2019 summary report does not contain a physician’s opinion regarding 

continuing disability or residuals from the accepted employment conditions. Therefore, it is of no 

probative value and insufficient to establish continuing disability or residuals.18

OWCP also received a cervical spine x-ray and a cervical spine MRI scan dated 

November 5, 2018 and an EMG/NCV study dated November 13, 2018. The Board has held that 

diagnostic tests standing alone lack probative value as they do not provide the physician’s opinion 

on causal relationship.

19

As appellant has not provided rationalized medical evidence establishing continued 

residuals or disability on or after September 23, 2014 causally related to his June 14, 2013 

employment injury, the Board finds that he has not met his burden of proof.

On appeal appellant’s representative generally argues that OWCP did not follow its own 

procedures with regard to appellant’s use of opioids. As explained above, 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.20 The medical evidence of record is 

insufficiently rationalized to meet appellant’s burden of proof. 

LEGAL PRECEDENT -- ISSUE 2

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.21

The medical evidence required to establish causal relationship between a specific 

condition, as well as any attendant disability claimed, and the employment injury, is rationalized 

medical opinion evidence.22 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.23 Additionally, the opinion of the physician must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

 

18 Id.

19 See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

20 Supra note 10.

21 W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., Docket No. 12-0599 (issued October 2, 2012); 

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

22 T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 

465 (2004).

23 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).
9

rationale, explaining the nature of the relationship between the diagnosed condition and the 

accepted employment injury.24

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to expand the acceptance of 

his claim to include an additional condition causally related to the accepted June 14, 2013 

employment injury. 

As previously noted, findings made in prior Board decisions are res judicata, absent any 

further review by OWCP under section 8128 of FECA.25 No new evidence or argument was 

submitted in support of expansion of the claim.

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 his burden of proof to establish continuing, 

employment-related residuals or disability on or after September 23, 2014 causally related to his 

June 14, 2013 employment injury. The Board also finds that appellant has not met his burden of 

proof to expand the acceptance of his claim to include an additional condition causally related to 

the accepted June 14, 2013 employment injury.26

 

24 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 

ECAB 345 (1989).

25 C.D., supra note 12.

26 On return of the case record OWCP should combine this case record with OWCP File No. xxxxxx649 and File 

No. xxxxxx335. 
10

ORDER

IT IS HEREBY ORDERED THAT the February 11, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 9, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board