United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.M., Appellant

and

U.S. POSTAL SERVICE, PHILADELPHIA 

NETWORK DISTRIBUTION CENTER, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 21-0101

Issued: December 15, 2021

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 29, 2020 appellant, through counsel, filed a timely appeal from a May 26, 2020 

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 Appellant submitted additional evidence to OWCP following the May 26, 2020 decision. However, the Board’s 

Rules of Procedures 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

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective March 20, 2019, as he no longer had 

disability or residuals causally related to his accepted September 26, 2017 employment injury; and 

(2) whether appellant has met his burden of proof to establish continuing disability or residuals 

causally related to his accepted September 26, 2017 employment injury on or after 

March 20, 2019.

FACTUAL HISTORY

On September 28, 2017 appellant, then a 70-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that, on September 26, 2017, he sustained injuries to the right hip and 

buttocks when an all-purpose container struck his left hip and he fell on his right hip, while in the 

performance of duty. He stopped work on that date. 

A November 6, 2012 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine 

interpreted by Dr. Thomas Chayapruks, a Board-certified diagnostic radiologist, revealed 

advanced multilevel degenerative changes,most severe at L2-3 and L4-5.

A September 27, 2017 MRI scan of appellant’s hips,interpreted by Dr. Antoni J. Parellada, 

a Board-certified diagnostic radiologist, revealed end-stage left hip joint osteoarthritis with 

subchondral marrow edema and diffuse maceration of the labrum and moderate right hip joint 

osteoarthritis. 

In October 13, 2017 reports, Dr. Christopher Selgrath, Board-certified in orthopedic 

surgery, noted that he had treated appellant over the years for osteoarthritis of the left hip. He

explained that appellant’s condition was worsened by the work-related accident of September 26, 

2017, and that appellant had an acute aggravation of preexisting osteoarthritis of the left hip and 

joint with new acute disc injury of the lumbar spine. Dr. Selgrath’s diagnoses included: primary 

osteoarthritis of the left hip; contusion of left hip, initial encounter; strain of lumbar region, initial 

encounter; and left hip pain. He noted that there appeared to be no acute edema soft tissue 

abnormality on the left hip MRI scan and that appellant had a mild-to-moderate contusion, with 

an anticipated full recovery within four to six weeks. Dr. Selgrath explained that appellant’s 

computerized tomography (CT) and MRI scans were consistent with preexisting end-stage 

degenerative joint disease of the left hip, which could have flared up due to temporary aggravation 

by the recent trauma; however, he indicated that he did not believe the work-related injury had 

anything to do with causing the abnormalities or contributing to any further damage.

A November 3, 2017 MRI scan of the lumbar spine, read by Dr. Joel Swartz, a Boardcertified diagnostic radiologist, demonstrated disc desiccation with disc bulging in the lumbar 

spine, facet arthritis and neuroforaminal stenosis, posterior ligamentous thickening resulting in 

severe-to-critical canal stenosis at L2-3, no fracture, dislocation, or focal disc herniation, and 

borderline congenital stenosis. 

On November 20, 2017 OWCP accepted the claim for temporary aggravation of unilateral 

primary osteoarthritis of the left hip, contusion of the left hip, and lumbar spine strain. It paid 

appellant compensation for disability from work on the supplemental rolls from November 11, 

2017 to June 8, 2018.
3

In a March 1, 2018 report, Dr. Laura Ross, an attending osteopathic Board-certified 

orthopedic surgeon, provided a detailed history of the September 26, 2017 employment injury. 

She noted that appellant had back issues in 2012, left hip issues since 2015, and that at the time of 

the September 26, 2017 employment incident he was scheduled to undergo left hip replacement 

surgery. Dr. Ross diagnosed left hip osteoarthritis and contusion, lumbar spine sprain/strain, 

lumbar spine disc herniations, thoracolumbar radiculopathy, and lumbar radiculopathy. She 

opined that the conditions were a direct result of the work incident. Dr. Ross explained that,

although the claimant had a history of previous disc herniation at L2-3 and L4-5, the conditions

were exacerbated by the work incident. She explained that she had compared the MRI scans from 

2012 and 2017,and there was objective worsening of the disc herniations at these levels in addition 

to worsening disc degeneration at L1-2, L3-4, and L5-S1. Dr. Ross further explained that the 

work-related incident involved the impact and the trauma of being struck by a power jack on the

left side, causing appellant to fall on a concrete floor on his right side from a standing position, 

which led to worsening of the underlying disc herniations and overall disc degeneration of the 

lumbar spine that was objectively demonstrated on the MRIscans performed prior to and following 

the incident. She noted that appellant had new complaints of persistent and severe pain in the left 

leg, left lateral thigh, left buttock region, and radiation of symptoms down the left leg and into the 

lower leg and foot. Dr. Ross indicated that, although appellant had underlying degenerative joint 

disease of the left hip and was already scheduled to undergo a left hip replacement prior to his 

injury, “his symptoms are not typical to symptoms of degenerative joint disease and are not 

attributed to the underlying condition.” She opined that the “aforementioned injuries can be 

directly attributed to the work-related incident that occurred on September 26, 2017.” Dr. Ross 

explained that she relied upon objective medical evidence, including multiple diagnostic studies 

of the lumbar spine, pelvis, and hips, correlated by her own physical examinations, which were 

consistent with appellant’s description of the injury.

An April 17, 2018 electromyography (EMG) scan interpreted by Dr. Brad Tinkelman, 

Board certified in neurology, revealed ongoing left L4-5 radiculopathy and underlying sensory 

motor neuropathy, likely due to age and wear. 

On October 1, 2018 OWCP referred appellant to Dr. Robert F. Draper, a Board-certified 

orthopedic surgeon for a second opinion evaluation to determine the status of appellant’s accepted 

conditions. Dr. Draper was also asked to address whether appellant had preexisting left hip 

osteoarthritis, L2-3, L4-5 lumbar disc pathology, with left lower extremity radiculitis, which were 

caused or temporarily/permanently aggravated by the accepted employment injury. 

In an October 26, 2018 report, Dr. Draper noted appellant’s history of injury and medical

treatment. He concluded that appellant’s accepted medical conditions from the September 26, 

2017 employment injury had resolved. Dr. Draper explained that the work injury did not produce 

a permanent aggravation of the preexisting degenerative disc disease of the lumbar spine or the 

underlying osteoarthritis of the left hip. He noted that his opinion was based upon his review of 

imaging studies which did not show any evidence of fracture or dislocation, and no traumatic 

pathology. Dr. Draper opined that “[a]ll of the pathology evidence on the imaging studies are 

preexisting conditions. It is my opinion that the preexisting conditions are not materially worsened 

by this accident.” He explained that appellant had a temporary aggravation of the preexisting 

conditions of the low back and the left hip, which would last two to four weeks, at most six months,

and not years. Dr. Draper advised that any discomfort in these areas lasting longer than six months 

was due to preexisting conditions, not the employment injury, and that appellant’s degenerative 
4

conditions had returned to the preinjury level according to the pathology documented on the 

imaging studies. 

In a November 1, 2018 report, Dr. Ross reiterated that appellant suffered from a series of 

degenerative conditions to the spine at the L2-3 and L4-5 levels, as well as degenerative joint 

disease to the left hip, which were materially worsened by the accepted work injury of 

September 26, 2017. She opined that the work injury caused a permanent aggravation of the

underlying disc and left hip conditions. Dr. Ross noted that appellant had been off work since 

November 11, 2017, and was permanently unable to return to work.

OWCP determined that there was a conflict in the medical opinion evidence between

Dr. Ross, the attending physician, and Dr. Draper, OWCP’sreferral physician, regarding the status

of his employment-related conditions. It referred appellant, the case record, and a statement of 

accepted facts (SOAF) to Dr. Joseph Jelen, a Board-certified orthopedic surgeon, for an impartial 

medical examination. Dr. Jelen was specifically asked to address whether appellant had residuals 

of the accepted September 26, 2017 employment injury, whether appellant had preexisting left hip 

osteoarthritis and degenerative disc disease at L2-3 and L4-5, with left lower extremity 

radiculopathy, and whether appellant’s September 26, 2017 employment injury contributed to the 

additional diagnoses by cause, temporary or permanent aggravation. 

In a January 8, 2019 report, Dr. Jelen, the impartial medical examiner (IME), noted 

appellant’s history of injury and medical treatment and provided physical examination findings. 

He noted appellant’s accepted diagnoses of temporary aggravation of unilateral primary 

osteoarthritis of the left hip, contusion of the left hip, and strain of the lumbar spine. Dr. Jelen

related that appellant had no residuals of the September 26, 2017 employment injury. He opined 

that appellant had recovered from his hip contusion, and hip and lumbar strains. Dr. Jelen also 

noted “present symptoms, based on objective evidence and record review over present preexisting 

conditions.” He explained that radiculopathy was present and appellant was a candidate for a hip 

replacement prior to the injury. Dr. Jelen opined that the work injury did not worsen the condition 

and explained that the MRI scan after the November 3, 2017 accidentshowed “no marrow edema 

to suggest contusion,” there was no mention of disc herniation, and all discs were described as 

bulging, which was a chronic condition. He noted the April 17, 2018 EMG showed ongoing left 

L4-5 lumbar radiculopathy that was not described as acute. Dr. Jelen opined that any aggravation 

was temporary and had resolved. He further opined that appellant had returned to his preinjury 

level and any residual symptoms were from the progression of his preexisting condition. Dr. Jelen

noted that appellant might need ongoing pain care for conditions unrelated to the work injury and 

opined that appellant had reached maximum medical improvement (MMI). He advised that 

appellant had no limitations as a result of the work injury and explained that appellant’s limitations 

were secondary to his preexisting severe arthritis of the left hip that would require hip replacement.

On January 24, 2019 OWCP requested clarification from Dr. Jelen, noting that his report 

was unclear as to when the work-related temporary aggravation of appellant’s left hip osteoarthritis

had resolved.

In a February 4, 2019 addendum report, Dr. Jelen noted thatDr. Selgrath in his October 13, 

2017 report advised that appellant had a mild-to-moderate hip contusion with no acute edema or

soft tissue abnormality on the MRI scan and that full recovery was anticipated in four to six weeks. 

He advised that the aggravation had resolved by October 26, 2018, based on the report of
5

Dr. Draper, who examined appellant on that date and found no work injury-related residuals, and 

based on his assessment of appellant.

In a February 12, 2019 notice, OWCP advised appellant that it proposed to terminate his 

wage-loss compensation and medical benefits, as he no longer had disability or residuals causally 

related to his accepted September 26, 2017 employment injury. It explained that the special weight 

of the medical opinion evidence rested with the opinion of Dr. Jelen, the IME. OWCP provided 

appellant 30 days to submit evidence or argument challenging the proposed termination action. 

No response was received.

By decision dated March 19, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effectiveMarch 20, 2019, as he no longer had disability or residuals causally 

related to his accepted September 26, 2017 employment injury.

On March 28, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. Subsequently, on April 16, 2019,

counsel for appellant provided a report from Dr. Ross who noted that she “identified deficiencies 

in the opinion of the referee examiner.”

In an April 8, 2019 report, Dr. Ross discussed the report from Dr. Draper, OWCP’sreferral 

physician. She noted that Dr. Draper advised that he saw “no evidence of permanent aggravation 

of the preexisting conditions based on the fact that the imaging studies do not show any evidence 

of fracture dislocation, no traumatic pathology at all. All the pathology evident in these imaging 

studies are preexisting conditions. It is my opinion that the preexisting conditions are not 

materially worsened by this accident.” Dr. Ross indicated that Dr. Draper was “just going by the 

studies alone.” She explained that “to fully evaluate this patient, one needs to not only look at the 

objective imaging studies, but also to listen to the subjective complaints of the patient and do a 

physical examination of the patient and put this all together to determine whether or not the patient 

has had traumatic injury.” Dr. Ross also noted that Dr. Draper found that appellant had a 

temporary aggravation of the preexisting conditions for the low back and left hip that would last 

two to four months and at most six months, but would not last years, and that any discomfort in 

these areas lasting longer than six months would be due to the preexisting conditions and not the 

accident. However, she explained that “Dr. Draper is surmising based on no specific evidence or 

any documentation that I have ever read. I find that this is a generalized statement and does not 

apply to this patient and should not be used in this case.”

Dr. Ross also discussed the report of Dr. Jelen, the IME, and noted that he reviewed all of 

the studies, evaluated the patient, and opined that the work injury did not contribute to the 

underlying radiculopathy, the hip arthritis, or the degenerative disc disease. However, she noted 

that Dr. Jelen found no marrow edema on the November 3, 2017 MRI scan, while this was clearly

untrue. Dr. Ross noted that her report dated March 1, 2018, discussed the subchondral marrow 

edema revealed by the September 27, 2017 MRIscan of the left hip. She indicated that it appeared 

that Dr. Jelen did not review both the 2012 and 2017 MRIscans. Dr. Ross explained that appellant 

had previously noted disc herniations at L2-3 and L4-5, but upon reviewing the more recent 

November 3, 2017 MRI scan of the spine, which was post trauma, there was an exacerbation of 

those disc herniations. She advised that this was evidence on objective testing that showed that 

there had been injury as a result of the work incident. Dr. Ross also noted that Dr. Jelen in his 

February 4, 2019 addendum clarified that the aggravation of the preexisting degenerative disc 

disease had ceased by October 26, 2018, which was the date appellant was examined by
6

Dr. Draper. However, she indicated that Dr. Jelen’s opinion was arbitrary and did not make any 

medical sense because he did not evaluate the patient on October 26, 2018. Dr. Ross referred to 

her March 1, 2018 report, noting thatshe found injury to appellant’s left hip and low back, as well 

as radiculopathydown his left leg, as a result of the accident at work. She also noted that appellant 

currently had symptoms which were not present prior to the work-related injury, including 

shootingpain down his left leg that changed with different movements and complaints of persistent 

and severe pain in the left leg, left lateral thigh, and left buttock region, and radiation of symptoms 

down left leg and into the lower leg and foot. Dr. Ross opined that these persistent symptoms were

related to a permanent aggravation of his low back and left hip underlying pathology due to the 

work injury. She advised that “it is imperative that you take another look at this case and reevaluate 

the facts, including the findings of an exacerbation of the disc herniations in the lumbar spine and 

the marrow edema in the left hip.”

A telephonic hearing was held on July 25, 2019.

By decision dated October 9, 2019, OWCP’s hearing representative affirmed the 

March 19, 2019 termination decision, finding that OWCP had met its burden of proof. However, 

she remanded the case for further development of the issue as to whether appellant had continuing 

employment-related disability or residuals. The hearing representative determined that OWCP 

should undertake further development of the medical evidence, to include providing the IME,

Dr. Jelen, with a copy of Dr. Ross’ April 8, 2019 report and the additional evidence received from 

appellant.

On October 15, 2019 OWCP noted that it had received an April 8, 2019 report from

Dr. Ross disagreeing with the report of Dr. Jelen. It requested that Dr. Jelen review the report and 

the additional medical records and treatment notes from February 21 through September 6, 2019, 

and provide an addendum with regard to whether they altered his opinion. 

Dr. Jelen provided an October 21, 2019 addendum. With regard to Dr. Ross’ comments 

relative to Dr. Draper’s report, he noted that Dr. Ross inaccurately stated that Dr. Draper reached 

his conclusions by reviewing the studies alone. Dr. Jelen noted that Dr. Draper’s report noted 

subjective complaints and documented extensive physical examination findings. With regard to

Dr. Ross’ comments regarding his own report, Dr. Jelen noted that Dr. Ross inaccurately stated 

that he found no marrow edema on the November 3, 2017 MRI scan of the lumbar spine and that 

he did not mention the bone marrow edema revealed in the September 27, 2017 MRI scan of the 

hip and pelvis. He noted that the November 3, 2017 MRI scan of the lumbar spine indicated no 

bone marrow to suggest contusion. Dr. Jelen also related that he had clearly reported the bone 

marrow edema of the hip and pelvis from the September 27, 2017 MRI scan and explained that it 

was from “end stage left hip joint osteoarthritis” and chronic arthritis, and did not represent an 

acute finding. Dr. Ross opined that the change in appellant’s condition revealed by comparison of 

the November 11, 2012 and November 3, 2017 MRI scans of the spine was the result of an 

exacerbation caused by trauma from the work injury. However, Dr. Jelen opined, “this cannot be 

substantiated. This can occur, as degenerative changes evolve.”

In a November 25, 2019 de novo decision, OWCP found that appellant’s medical benefits 

and wage-loss compensation remained terminated effective March 20, 2019. 

In a letter dated December 5, 2019, counsel for appellant requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on March 13, 2020. 
7

OWCP received an April 9, 2018 report from Dr. Douglas Diorio, Board-certified in family 

medicine, who noted appellant’s history of injury and diagnosed chronic pain syndrome, other 

intervertebral lumbar disc displacement, lumbosacral radiculopathy, and neuralgia/neuritis. 

Dr. Diorio recommended interventional therapy, pain management, nerve conduction studies of 

the bilateral lower extremities, and a series of epidural steroid injections. 

OWCP received a copy of a September 26, 2017 emergency room report indicating that 

appellant was admitted after being struck by a mail bin at work. 

By decision dated May 26, 2020, OWCP’s hearing representative affirmed the 

November 25, 2019 decision. 

LEGAL PRECEDENT -- ISSUE 1

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 compensation.7 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.8

Section 8123(a) of FECA provides in pertinent part: “if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

9

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well-rationalized and based upon a proper factual background, must be 

given special weight.10

4

See M.E., Docket No. 20-0877 (issued August 2, 2021); D.G., Docket No. 19-1259 (issued January 29, 2020); 

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

5

See R.P., Docket No. 17-1133 (issued January 18, 2018); JasonC. Armstrong, 40 ECAB 907 (1989); Charles E. 

Minnis, 40 ECAB 708 (1989); VivienL. Minor, 37 ECAB 541 (1986).

6 M.C., Docket No. 18-1374 (issued April23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7 A.G., Docket No. 19-0220 (issued August1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 

ECAB 524 (2007); KathrynE. Demarsh, 56 ECAB 677 (2005). FurmanG. Peake, 41 ECAB 361, 364 (1990).

8

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); PamelaK. Guesford, 53 ECAB 727 (2002).

9

5 U.S.C. § 8123(a).

10 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).
8

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 20, 2019.

OWCP properly determined that there was a conflict in the medical opinion evidence 

regarding employment-related residuals and referred appellant, pursuant to section 8123(a) of 

FECA (5 U.S.C. § 8123(a)), to Dr. Jelen for an impartial medical examination and an opinion on 

the matter as to whether appellant had residuals of the accepted conditions of lumbar strain, left 

hip contusion and temporary aggravation of primary osteoarthritis of the left hip, and whether 

appellant’s preexisting left hip osteoarthritis and degenerative disc disease at L2-3 and L4-5, with 

left lower extremity radiculopathy, were temporarily or permanently aggravated by the accepted 

employment injury. The Board finds, however, that the IME’s opinion is not sufficiently 

rationalized to constitute the special weight of the medical opinion evidence.11

Dr. Jelen failed to provide an adequate medical rationale to explain how he determined that 

all of appellant’s accepted conditions had resolved by October 26, 2018. He cited Dr. Draper’s 

prior opinions, but did not offer his own opinion, based upon the entire medical record and specific 

findings from his own medical evaluation, which explained that appellant no longer had residuals 

of the accepted lumbar strain, left hip contusion, and temporary aggravation of unilateral left hip 

primary osteoarthritis. The Board has held that a medical report is of limited probative value 

regarding a given medical matter if it does not contain medical rationale explaining that matter.12 

The Board, therefore, finds that the IME report is insufficient to meet OWCP’s burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits for the accepted conditions.

The Board finds that Dr. Jelen’s reports were not sufficiently rationalized to constitute the 

special weight of the medical evidence.13 OWCP therefore did not meet its burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits. 

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 20, 2019.

14

11 Id.

12 See T.T., Docket No. 18-1054 (issued April8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

13 Supra note 10 

14 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
9

ORDER

IT IS HEREBY ORDERED THAT the May 26, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: December 15, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board