United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 20-0243

Issued: May 28, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 12, 2019 appellant filed a timely appeal from a May 26, 2019 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 to 

consider the merits of this case.

ISSUE

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

to wage-loss compensation and medical benefits, effective May 26, 2019, as he no longer had 

residuals or disability causally related to his accepted January 28, 1977 employment injury.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

OWCP accepted that on January 28, 1977 appellant, then a 26-year-old part-time letter 

carrier,2sustained a lumbosacral sprain, mid-dorsal contusion chest, and permanent aggravation 

of preexisting thoracolumbar scoliosis when he tripped and fell on a sidewalk when carrying mail 

while in the performance of duty. He stopped work on January 31, 1977 and has not returned. 

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

In an October 3, 2005 medical report, Dr. Carlton A. West, an attending Board-certified 

orthopedic surgeon, examined appellant. He reported tenderness along the right paraspinal 

muscles of the lumbar spine with prominent lateral curvature of the thoracolumbar spine. Dr. West 

advised that appellant had permanent deformity of the lower back. He opined that appellant 

remained totally disabled from heavy work. Dr. West concluded that he had a chronic and 

permanent condition and that no spontaneous improvement was expected. 

By letters dated October 22, 2005 through January 14, 2016, OWCP periodically informed

appellant the need for current medical evidence to establish his entitlement to continuing

compensation benefits. It requested that he submit a current medical report from an attending 

physician addressing his employment-related residuals. OWCP also requested that the physician 

complete an accompanying work capacity evaluation (Form OWCP-5c), indicating whether 

appellant was able to return to work. Appellant was afforded 30 days to submit the requested 

information. No response was received. 

On May 13, 2016 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), the medical record, and a list of questions, to Dr. James L. Elmes, a Board-certified 

orthopedic surgeon, for a second opinion. 

In a June 28, 2016 report, Dr. Elmes described the January 28, 1977 employment injury 

and noted that appellant’s claim was accepted for lumbosacral strain, mid-dorsal contusion chest, 

and permanent aggravation of preexisting thoracolumbar scoliosis. He noted a review of 

appellant’s medical records and related that they did not indicate that his significant scoliosis 

progressed as a result of the employment injury. Dr. Elmes advised that the work injury was not 

a direct cause, precipitation, or acceleration of the scoliosis. He related that appellant may have 

had temporary aggravation of his chronic back pain due to increased pain from the employment 

injury for three months. Dr. Elmes advised that appellant was unable to return to his date-of-injury 

job as a mail carrier due to deconditioning and the natural course of progression of his preexisting 

scoliosis, but he could perform sedentary-type job work with restrictions. Appellant’s ongoing 

back pain was not a permanent aggravation or exacerbation, but was the expected normal course 

with this type of scoliosis. Additionally, Dr. Elmes noted that appellant’s back pain did not 

correlate with an aggravation of his 30-year-old employment injury. On physical examination he

found a normal heel and toe gait pattern. Dr. Elmes noted that appellant used a cane on the left. 

Appellant leaned slightly to the left when walking. He walked 150 feet with normal heel-to-toe 

motion and good balance without leaning when walking without the cane. Appellant leaned on a 

counter for support with toe standing and walking. He was able to heel walk a few steps. Appellant

 

2 The Board notes that appellant’s claim form is not contained in the case record. he record indicates that appellant 

worked part time due to preexisting low back pain.
3

leaned on the counter for support, but this was weaker than toe standing and walking. He was 

unable to hop secondary to low back pain. Appellant dressed and undressed himself unassisted. 

He got on and off the examination table unassisted. Appellant performed a one-half squat without 

pain. On motor examination Dr. Elmes found normal fine and gross motor coordination. 

Appellant could button, tie zip, write, and pick up a penny without difficulty. Grip strength on the 

right was 51, 53, 60, 52, 52, maximum being 60 pounds and on the left was 52, 60, 70, 65, 59, 

maximum being 70 pounds. Appellant walked 50 feet unassisted in Dr. Elmes’ office and one

block outdoors. Extremity strength of the bilateral upper extremities was 5/5, the right lower 

extremity was 5/5 the left lower extremity was 5-/5 with slight decrease because of pain. 

Regarding circumferential measurements, there was no measurable atrophy of the bilateral upper

and lower extremities. On neurological examination Dr. Elmes found that appellant was alert and 

oriented throughout the evaluation. He answered all questions intelligently without hesitation. 

Vibratory sensation of the upper and lower extremities was bilaterally equal and normal. Sensation 

was to light touch and pinprick in the upper and lower extremities was bilaterally equal and normal. 

Deep tendon reflexes of the upper extremities was one-fourth bilaterally and of the lower 

extremities the patellar was one-fourth and there was Achilles trace. All ranges of motion (ROM) 

of the joints were normal except the right and left knees had no patellofemoral crepitus. They both 

had good stability without any effusion. Active knee flexion was 135 degrees on the right and 134 

degrees on the left. The ROM of the shoulders was 170 degrees of active flexion, normal being 

180 degrees. The remainder of ROM measurements were normal. There was some shoulder pain 

on the right with extreme range of flexion and abduction. A vascular examination revealed pulses 

that were bilaterally equal and regular. There was no abnormal pallor, cyanosis, pigmentation, or 

dermatitis of the skin. On examination of the back Dr. Elmes reported mild tenderness at LS-S1 

and mildly at Tl2-L1 with some slight tenderness in the left sacroiliac area and superolateral gluteal 

region. With forward flexion, the right rib hump was prominent and with standing erect there was 

prominence to the left hip and iliac crest. Going up and down a single step was stronger on the 

right than the left. ROM of the back was within normal limits except for flexion to about 70 

degrees with fingertips to 8 inches from the floor. Extension was 10 degrees, normal being 25 

degrees, and lateral bending was 10 degrees, normal being 25 degrees. Leg length from the 

anterior superior iliac spine was 102 centimeters (cm) on the left and 101 cm on the right. A 

Waddell test with 0/5 tests was inappropriate as there was no symptom magnification.

Dr. Elmes diagnosed: lumbosacral strain that healed in eight weeks; mid dorsal chest 

contusion that healed in eight weeks; aggravation of preexisting scoliosis that healed in three 

months; and generalized deconditioning. He advised that these conditions were work related. 

Dr. Elmes opined that the generalized deconditioning was work related since appellant was unable 

to exercise or work due to increased low back pain. He recommended, among other things, a 

written home therapeutic exercise program to strengthen his lower extremities and spinal 

supportive muscles. Dr. Elmes related that he should have started a therapeutic exercise program 

three months after the date of injury. He also diagnosed right dorsal hand lump noted in a previous 

1979 medical evaluation. Additionally, Dr. Elmes diagnosed high blood pressure that was not 

work related. He determined that appellant reached maximum medical improvement three months 

status post his January 28, 1977 employment injury. Dr. Elmesreiterated that he could not perform 

his date-of-injury position, but he could perform sedentary work with restrictions. He concluded 
4

that appellant’s work-related conditions had resolved. Dr. Elmes again noted that he had pain due 

to the natural progression of scoliosis over the past 30 years with associated chronic strain.3

By notice dated April 19, 2019, OWCP advised appellant that it proposed to terminate his

entitlement to wage-loss compensation and medical benefits based on Dr. Elmes’ opinion that the 

January 28, 1977 accepted conditions had ceased without residuals or disability. It afforded him 

30 days to submit additional evidence or argument challenging the proposed termination. No 

response was received.

OWCP, by decision dated May 22, 2019, terminated appellant’s wage-loss compensation 

and medical benefits, effective May 22, 2019, based on Dr. Elmes’ second opinion. It noted that 

appellant had not submitted any additional medical evidence as requested. 

In an amended notice of even date, OWCP modified the effective date of the termination 

to May 26, 2019.

LEGAL PRECEDENT

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

termination or modification of an employee’s benefits.4 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.5 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.6

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

entitlement for disability.7 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.8

 

3 OWCP, by decision dated February 22, 2017, suspended appellant’s wage-loss compensation, effective 

February 5, 2017, for failing to complete a financial disclosure statement (Form CA-1032) as requested. It advised

that, if appellant were to complete and return the form, his compensation benefits would be restored retroactively to 

the date they were suspended. On March 24, 2017 OWCP received his completed Form CA-1032 dated 

March 3, 2017. It reinstated appellant’s compensation benefits and placed him back on the periodic rolls. 

4 See D.G., Docket No. 19-1259 (issued January 29, 2020); R.P., Docket No. 17-1133 (issued January 18, 2018); 

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5 See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. 

Minor, 37 ECAB 541 (1986).

6 K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019); 

Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

8 L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).
5

ANALYSIS

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

entitlement to wage-loss compensation and medical benefits, effective May 26, 2019, as he no 

longer had residuals or disability causally related to his accepted January 28, 1977 employment 

injury.

OWCP referred appellant to Dr. Elmes for a second opinion evaluation to determine the 

status of his accepted conditions and work capacity. In his June 28, 2016 report, Dr. Elmes 

described his January 28, 1977 employment injury and noted that his claim was accepted for 

lumbosacral strain, mid-dorsal contusion chest, and permanent aggravation of preexisting 

thoracolumbar scoliosis. He reported that findings on examination were essentially normal.

Dr. Elmes opined that the accepted work-related conditions had resolved, that appellant could 

return to sedentary work with restrictions, and that there was no need for further medical treatment

for the accepted conditions. He opined that the employment-related injury caused a temporary 

rather than permanent aggravation of appellant’s preexisting scoliosis and that his current pain was 

due to the natural progression of his condition over the past 30 years. Dr. Elmes explained that he 

required a home exercise program for his scoliosis condition because he never received such 

treatment which should have begun three months after the date of his injury.

The Board finds that OWCP properly accorded the weight of the medical evidence to

Dr. Elmes. Dr. Elmes based his opinion on a proper factual and medical history and physical 

examination findings and provided medical rationale for his opinion. He provided a wellrationalized opinion based on medical evidence regarding the accepted conditions causally related 

to appellant’s January 28, 1977 employment injury. Accordingly, OWCP properly relied on

Dr. Elmes’ second opinion report in terminating his entitlement to wage-loss compensation and 

medical benefits.9

On appeal appellant contends that his accepted January 28, 1977 employment-related 

injury exacerbated his preexisting scoliosis of the spine and resulted in his total disability from 

work. As explained above, OWCP properly terminated his wage-loss compensation and medical 

benefits as the opinion of Dr. Elmes, the second opinion physician, constituted the weight of the 

medical evidence. 

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 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

entitlement to wage-loss compensation and medical benefits, effective May 26, 2019, as he no 

 

9 See E.S., Docket No. 20-0673 (issued January 11, 2021); K.W., supra note 6; N.G., Docket No. 18-1340 (issued 

March 6, 2019); A.F., Docket No. 16-0393 (issued June 24, 2016).
6

longer had residuals or disability causally related to his accepted January 28, 1977 employment 

injury.

ORDER

IT IS HEREBY ORDERED THAT the May 22, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 28, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board