United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.D., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

NATIONAL GUARD, Latham, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0089

Issued: August 15, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On October 28, 2021 appellant, through counsel, filed a timely appeal from a July 29, 2021 

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. 

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.
2

ISSUE

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

compensation and medical benefits, effective January 23, 2021, as he no longer had disability or 

residuals causally related to the accepted May 21, 2015 employment injury.

FACTUAL HISTORY

On July 7, 2015 appellant, then a 29-year-old tools and parts attendant, filed a traumatic 

injury claim (Form CA-1) alleging that on May 21, 2015 he sustained anxiety, depression, and 

post-traumatic stress disorder after a verbal altercation with his supervisor while in the 

performance of duty. He stopped work on May 21, 2015. OWCP accepted the claim for a single 

episode of mild major depressive affective disorder. It paid appellant wage-loss compensation on 

the supplemental rolls effective September 5, 2016, and on the periodic rolls effective 

November 12, 2017.

On July 6, 2018 a nurse practitioner advised that appellant was disabled from work and 

indicated that he continued to be harassed by his former employer.

In a report dated November 5, 2018, Dr. Jeffrey S. Aronowitz, a Board-certified 

psychiatrist and OWCP referral physician, noted that appellant had sustained an injury to his low 

back on May 20, 2015. On May 21, 2015 he went to work to file paperwork and informed his 

supervisor who accused him of lying. Dr. Aronowitz diagnosed a single episode of mild major 

depressive disorder with anxious distress and other problems related to employment. He opined 

that appellant was currently disabled due to his major depressive disorder resulting from his 

chronic back pain and encounter with his manager on May 21, 2015 after his May 20, 2015 

employment injury. Dr. Aronowitz recommended medication and more frequent therapy.

In a duty status report (Form CA-17) dated November 26, 2018, a nurse practitioner 

advised that appellant was unable to work. 

On April 4, 2019 OWCP informed appellant that a nurse practitioner was not considered a 

physician under FECA. It advised him to either treat with a clinical psychologist or physician to 

provide treatment or have the reports from the nurse practitioner cosigned by a docto r or 

psychologist. 

In an attending physician’s report (Form CA-20) dated September 6, 2019, a nurse 

practitioner diagnosed major depressive disorder and generalized anxiety disorder and advised that 

appellant was disabled from employment. The nurse practitioner continued to provide form 

reports finding him disabled from employment. 

On July 14, 2020 OWCP again referred appellant to Dr. Aronowitz for a second opinion 

examination. 

In a report dated August 3, 2020, Dr. Aronowitz referred to his prior evaluation of appellant 

and noted that he was no longer participating in psychotherapy and had refused antidepressants 

after a trial of medication caused grogginess. He found that appellant was no longer disabled from 

work due to his mild major depressive disorder with anxious distress. Dr. Aronowitz opined that 
3

appellant had reached maximum medical improvement (MMI), noting that he was not receiving 

therapy and had refused medication. He related, “[Appellant] has had ample opportunity to avail 

himself to effective treatment and thus it seems that elements of noncompliance and secondary

gain have contributed to his suboptimal response to treatment.” Dr. Aronowitz advised that most 

individuals with mild major depressive disorder with anxious distress could fu nction in the 

workplace. He related, “From a psychiatric standpoint, [appellant] is felt to be fit for duty with a 

favorable prognosis and is capable of gainful employment.” In a work capacity evaluation (Form 

OWCP-5a), Dr. Aronowitz indicated that appellant could return to work without restrictions from 

a psychiatric standpoint.

In a duty status report dated September 16, 2020, a nurse practitioner diagnosed major 

depression/anxiety and advised that appellant was unable to work. 

On December 16, 2020 OWCP notified appellant of its proposed termination of his 

compensation as the weight of the evidence established that he no longer had employment-related 

disability or need for further medical treatment due to his accepted employment injury. It afforded 

him 30 days to submit additional evidence or argument if he disagreed with the proposed 

termination. 

In a report dated January 11, 2021, Dr. Edward Reason, an osteopath Board-certified in 

internal medicine, opined that appellant was unable to return to work at this time as a result of 

major depressive disorder and anxiety. He noted that appellant also had radiculopathy from a low 

back injury. 

By decision dated January 22, 2021, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective January 23, 2021. It found that Dr. Aronowitz’s

opinion represented the weight of the evidence and established that appellant no longer had 

disability or residuals due to his accepted employment injury. 

On January 28, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

A hearing was held on May 14, 2021. 

By decision dated July 29, 2021, OWCP’s hearing representative affirmed the January 22, 

2021 decision. 

LEGAL PRECEDENT

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

modification or termination of an employee’s benefits.3 The right to medical benefits for an 

accepted condition is not limited to the period of entitlement to compensation for disability.4 To 

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

4

S.P., Docket No. 19-0196 (issued June 24, 2020); J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., 

Docket No. 18-1372 (issued February 27, 2019).
4

terminate authorization for medical treatment, OWCP must establish that the employee no longer 

has residuals of an employment-related condition that require further medical treatment.5

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

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

ANALYSIS

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

compensation, effective January 23, 2021, as he no longer had disability causally related to the 

accepted May 21, 2015 employment injury. 

Second opinion physician Dr. Aronowitz found that appellant had no further disability due 

to his mild major depressive disorder with anxious distress. He noted that he was not receiving 

therapy or treatment with medication. Dr. Aronowitz advised that appellant had ample opportunity 

to avail himself to effective treatment and appellant’s failure to do so may have been caused by 

elements of noncompliance and secondary gain. He opined that, from a psychiatric standpoint, 

appellant was fit for duty with a favorable prognosis and was capable of gainful employment. He 

asserted that most individuals with mild major depression could function in the workplace. 

Dr. Aronowitz opined that appellant had obtained MMI and could return to work without 

psychiatric restrictions. 

Dr. Aronowitz based his opinion on a proper factual and medical history and findings on 

physical examination. He provided medical rationale for his opinion that appellant had no further 

disability and had reached MMI, noting that he was not receiving any treatment for his condition.7 

The Board therefore finds that OWCP properly relied upon the opinion of Dr. Aronowitz in 

terminating appellant’s wage-loss compensation.8

There is no probative contemporaneous medical evidence supporting continued disability. 

In a report dated January 11, 2021, Dr. Reason found that appellant was unable to return to work 

due to major depressive disorder and anxiety. However, he is an osteopath specializing in internal 

medicine. The Board has held that the opinions of physicians who have training and knowledge 

in a specialized medical field have greater probative value concerning medical questions peculiar 

to that field than the opinion of other physicians.9 Dr. Reason’s report is, therefore, of limited 

probative value. Appellant also submitted reports from a nurse practitioner, however, these reports 

5

Id.

6 D.G., Docket No. 19-1259 (issued January 29, 2020); M.C., Docket No. 18-1374 (issued April23, 2019); Del K. 

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

7

See E.J., Docket No. 20-0013 (issued November 19, 2020). 

8

See L.S., Docket No. 20-1204 (issued October 4, 2021); L.B., Docket No. 19-1380 (issued February11, 2020).

9

See T.G., Docket No. 18-1718 (issued May 9, 2019); A.A., Docket No. 17-1027 (issued June 18, 2018). See also 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.6a(3) (September 2010).
5

are of no probative value as nurse practitioners are not considered physicians as defined under 

FECA.10

The Board further finds, however, that OWCP failed to meet its burden of proof to 

terminate appellant’s medical benefits, effective January 23, 2021.

Dr. Aronowitz indicated that appellant had not received effective treatment for his 

condition primarily due to noncompliance and secondary gain. He, however, did not find that 

appellant’s accepted condition had resolved, or that he no longer required medical treatment. As

Dr. Aronowitz did not specifically address whether appellant continued to have residuals of his 

accepted mild major depressive affective disorder, his opinion is insufficient to support the 

termination of appellant’s medical benefits.11

CONCLUSION

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

compensation, effective January 23, 2021, as he no longer had disability causally related to the 

accepted May 21, 2015 employment injury. The Board further finds, however, that OWCP failed 

to meet its burden of proof to terminate appellant’s medical benefits, effective January 23, 2021.

10 Section 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 

See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013); DavidP. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals 

such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under 

FECA); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not 

considered physicians under FECA).

11 C.O., Docket No. 16-1905 (issuedMay25, 2017).
6

ORDER

IT IS HEREBY ORDERED THAT the July 29, 2021 decision of the Office of Workers’

Compensation Programs is affirmed in part and reversed in part.

Issued: August 15, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board