United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Absecon, NJ, Employer

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Docket No. 21-1129

Issued: April 19, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 20, 2021 appellant filed a timely appeal from a May 7, 2021 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.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the May 7, 2021 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedureprovides: “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 met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective March 4, 2016, as he had no further disability or 

residuals of his accepted employment injuries. 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

are as follows.

On December 6, 2007 appellant, then a 40-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured his back, neck, and right shoulder when 

he slipped and fell while in the performance of duty. OWCP accepted the claim, assigned OWCP 

File No. xxxxxx062, for lumbar sprain and a sprain of the right acromioclavicular (AC) joint of 

the right shoulder and upper arm. It subsequently expanded the acceptance of the claim to include 

right shoulder tendinitis. OWCP paid appellant wage-loss compensation on the supplemental rolls,

effective January 20, 2008, and on the periodic rolls effective April 12, 2009.4

By decision dated May 11, 2012, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that date, as he no longer had disability or residuals due to his 

accepted December 6, 2007 employment injury.

5

Appellant appealed to the Board. By decision dated July 12, 2013, the Board affirmed in 

part and reversed in part OWCP’s May 11, 2012 termination decision.6 The Board found that 

OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical 

benefits for the accepted conditions of right shoulder and lumbar sprains, but it did not meet its 

burden of proof to terminate appellant’s wage-loss compensation and medical benefits for the 

accepted condition of right shoulder tendinitis.

On January 6, 2015 appellant received treatment at the emergency room for pain in his 

neck, right shoulder, and lumbar spine after a nonemployment-related motor vehicle accident 

(MVA).

3 Docket No. 13-0228 (issued July 12, 2013); Order Remanding Case, Docket No. 19-0279 (issued 

March 20, 2020).

4 OWCP had previously accepted that on May 22, 2003 appellant sustained a lumbosacral sprain, assigned OWCP 

File No. xxxxxx445.

5 By decision dated September 14, 2012, OWCP denied appellant’s request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a).

6

Supra note 3.
3

By decision dated March 4, 2016, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that date, after finding that he had no further disability or residuals

causally related to either the May 22, 2003 or December 7, 2007 accepted employment injuries.

On April 1, 2016 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. A hearing was held on July 13, 2016. By decision dated 

September 2, 2016, OWCP’s hearing representative affirmed the March 4, 2016 termination 

decision.

Appellant requested reconsideration. By decisions dated December 16, 2016 and 

March 20, June 30, and November 21, 2017, OWCP denied modification of its prior decisions.

On March 27, 2018 appellant underwent a right L4-5 and L5-S1 laminotomy, 

foraminotomy, and partial facetectomy. OWCP authorized the procedures under OWCP File No. 

xxxxxx445.

On June 5, 2018 appellant again requested reconsideration.

By decision dated November 9, 2018, OWCP denied modification of its November 21, 

2017 decision.

Appellant appealed the November 9, 2018 decision to the Board.

Under OWCP File No. xxxxxx445, OWCP determined that a conflict existed between

Dr. John T. Bannon, a Board-certified orthopedic surgeon and OWCP referral physician, and

Dr. AbhijeetRastogi, an anesthesiologist, regarding whether appellant’s claim should be expanded 

in OWCP File No. xxxxxx445 to include additional conditions and whether a proposed lumbar 

facet joint surgery was medically necessary. It referred him to Dr. Ian B. Fries, a Board-certified 

orthopedic surgeon, for an impartial medical examination.

In a report dated January 17, 2020, provided under OWCP File No. xxxxxx445, Dr. Fries 

discussed appellant’s history of injury and provided his review of the medical evidence. He 

diagnosed chronic low back pain with radiation to the right lower extremity consistent with 

degenerative spondylosis, right laminectomies and decompressions at L4-5 and L5-S1, a right

rotator cuff repair and AC resection, a partial synovectomy of the right wrist, and symptom 

magnification and non-physiological findings. Dr. Fries advised that the additional diagnoses 

were not causally related to his accepted employment injury. He opined that OWCP should not 

expand the acceptance of the claim to include additional conditions and further found that surgery 

was not indicated. Dr. Fries determined the objective findings were insufficient to support that 

appellant was disabled from employment.

By order dated March 20, 2020, the Board set aside the November 9, 2018 decision.7 The 

Board noted that the record before the Board did not contain OWCP File No. xxxxxx445. The 

Board remanded the case for OWCP to administratively combined the current case, OWCP File 

7

Id.
4

No. xxxxxx062, with OWCP File No. xxxxxx445 and determine appellant’s disability status and 

entitlement to medical benefits under both claims.

OWCP administratively combined OWCP File No. xxxxx062 with OWCP File No. 

xxxxxx445, with the latter serving as the master file. 

On March 31, 2021 OWCP requested that Dr. Fries address whether appellant’s May 22, 

2003 and December 6, 2007 employment injuries had resolved. It asked that Dr. Fries clarify the 

effect of the January 16, 2015 MVA on his condition. The accompanying SOAF of even date 

indicated that it superseded all prior versions. It described the May 22, 2003 employment injury

and indicated that it had been accepted for lumbosacral sprain. The SOAF further noted that it had 

accepted lumbar sprain and right shoulder and upper arm AC joint sprain due to a December 6, 

2007 employment injury. 

On April 1, 2021 Dr. Fries reviewed the updated SOAF and noted that the only accepted 

condition was lumbosacral sprain. He opined that appellant had no residuals or need for further 

medical treatment due to the accepted May 22, 2003 and December 6, 2007 employment injuries. 

Dr. Fries asserted that the updated SOAF did not mention the December 6, 2007 employment 

injury and accepted conditions of lumbar, right shoulder, and upper arm sprains and, thus,

concluded that “those injuries are no longer of issue.” He indicated that at the time of his 

January 8, 2020 examination he had found that appellant’s disability was “exaggerated and did not 

match objective findings.” Dr. Fries found “insufficient objective findings to consider [appellant] 

incapable of duty as a rural carrier associate.”

By decision dated May 7, 2021, under OWCP File No. xxxxxx062, OWCP terminated 

appellant’s wage-loss compensation and medical benefits, effective March 4, 2016. It accorded

Dr. Fries’ opinion the special weight of the evidence as the IME and established that appellant had 

no further disability or residuals of his accepted December 6, 2007 employment injury.

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.8 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.9 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.10

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

entitlement for disability.11 To terminate authorization for medical treatment, OWCP must 

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

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

10 C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

11 E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).
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establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.12

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 4, 2016.

On prior appeal the Board set aside OWCP’s November 9, 2018 decision denying 

modification of its termination of appellant’s wage-loss compensation and medical benefits. The 

Board remanded the case for OWCP to administratively combine OWCP File No. xxxxxx445 with 

the current claim, OWCP File No. xxxxxx062, and to reconsider whether appellant was disabled 

or had residuals of his accepted employment injuries.

Following the Board’s remand, on March 31, 2021 OWCP prepared an updated SOAF and 

referred appellant to Dr. Fries for an opinion on whether appellant’s employment-related injuries 

had resolved. The SOAF primarily set forth the May 22, 2003 employment injury under OWCP 

File No. xxxxxx445. Regarding the December 6, 2007 employment injury, it indicated that it had 

accepted lumbar sprain and right shoulder and upper arm AC sprain. OWCP did not include the 

accepted condition of right shoulder tendinitis.

Initially, the Board notes that Dr. Fries provided a second opinion evaluation rather than 

an impartial medical examination on the issue of whether appellant had any further employmentrelated disability or residuals of his accepted employment injuries. While OWCP had previously 

referred appellant to Dr. Fries to resolve a conflict in medical opinion regarding whether the 

acceptance of appellant’s claim should be expanded in OWCP File No. xxxxxx445 to include 

additional conditions and on the issue of surgical authorization, there was no conflict in medical 

opinion on the issue of disability and continuing residuals at the time of OWCP’s referral of 

appellant to Dr. Fries. Consequently, Dr. Fries’ opinion is that of a second opinion physician 

rather than an IME.13

The Board finds that Dr. Fries’ opinion is of diminished probative value as he relied upon 

a SOAF that was incomplete. On prior appeal the Board instructed OWCP to administratively 

combine OWCP File Nos. xxxxxx445 and xxxxxx062 and to reconsider whether appellant was 

disabled or had residuals of his accepted employment injuries. OWCP provided Dr. Fries with a 

SOAF dated March 31, 2021 that primarily discussed the May 22, 2003 employment injury in 

OWCP File No. xxxxxx445. Later in the SOAF it indicated that it had also accepted lumbar sprain 

and a sprain of the right AC shoulder joint due to a December 6, 2007 employment injury. It did 

not include the accepted condition of right shoulder tendinitis. 

OWCP’s procedures and Board precedent dictate that when an OWCP medical adviser, 

second opinion specialist, or impartial medical specialist renders a medical opinion based on a 

SOAF, which is incomplete or inaccurate or does not use the SOAF as the framework in forming 

12 A.J., Docket No. 18-1230 (issued June 8, 20200; R.P., Docket No. 18-0900 (issued February 5, 2019).

13 See T.C., Docket No. 17-1741 (issued October 9, 2018); R.H., Docket No. 17-1477 (issued March 14, 2018).
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his or her opinion, the probative value of the opinion is seriously diminished or negated 

altogether.14 The March 31, 2021 SOAF provided to Dr. Fries did not include all of the conditions 

accepted by OWCP due to his December 6, 2007 employment injury, an essential element of the 

SOAF according to OWCP’s procedures.15 As Dr. Fries relied upon a SOAF that was incomplete, 

his opinion is of diminished probative value.16 Accordingly, the Board finds that OWCP did not 

meet its burden of proof to terminate appellant’s wage-loss compensation effective March 4, 2016.

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 4, 2016.

ORDER

IT IS HEREBY ORDERED THAT the May 7, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: April 19, 2022

Washington, DC

Alec J. Koromilas, 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

14 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). See also D.E., Docket No. 17-1794 (issued April 13, 2018); K.V., Docket No. 15-0960 (issued 

March 9, 2016); Paul King, 54 ECAB 356 (2003).

15 Id. at Part 2 --Claims, Statements of Accepted Facts, Chapter 2.809.5(f)(g)(September 2009).

16 See supra note 14; D.C., Docket No. 21-0780 (issued December 22, 2021).