United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.L., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SUBMARINE BASE NEW LONDON, 

Groton, CT, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1901

Issued: April 7, 2021

Appearances: Case Submitted on the Record

Douglas Sughrue, Esq., for the appellant1

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 September 16, 2019 appellant, through counsel, filed a timely appeal from a May 20, 

2019 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

ISSUES

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

wage-loss compensation and medical benefits, effective April 29, 2018, as he no longer had

residuals or disability causally related to his accepted January 10, 2002 employment injury; and 

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

causally related to his accepted January 10, 2002 employment injury on or after April 29, 2018.

FACTUAL HISTORY

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

the Board’s prior decisions are incorporated herein by reference. 

On January 10, 2002 appellant, then a 43-year-old heavy mobile equipment mechanic, filed 

a traumatic injury claim (Form CA-1) alleging that he sustained a back injury on that date when

he lifted a crane tire weighing approximately 300 pounds and turned its rim on a tire machine while 

in the performance of duty.4 OWCP initially accepted his claim for lumbosacral strain and later 

expanded the accepted conditions to include displacement of lumbosacral disc without 

myelopathy. Appellant stopped work on January 10, 2002 and returned to limited-duty work on a 

full-time basis on February 14, 2002. OWCP paid him wage-loss compensation on the 

supplemental rolls for disability from work commencing March 13, 2002.

5

Appellant came under the care of Dr. Joel Abramovitz, a Board-certified neurosurgeon, 

who noted on January 22, 2002 that appellant reported a prior history of lumbar disc surgery in 

1980 for left-sided pain and in 1981 for right-sided pain.

6

 Dr. Abramovitz indicated that on 

physical examination appellant exhibited symptoms of acute back strain with some symptoms, if 

not convincing signs, of left L3 or L4 radiculopathy. The findings of a July 18, 2002 magnetic 

resonance imaging (MRI) scan showed normal disc space at L1-2 and L5-S1, diffuse disc bulges 

at L2-3 and L3-4 with moderate facet hypertrophy, and degenerative disc disease at L4-5 with 

postoperative changes (no evidence of recurrent disc herniation).

On October 21, 2004 appellant began receiving medical treatment from Dr. John Paggioli, 

a Board-certified anesthesiologist, who advised that on physical examination appellant reported 

mild-to-moderate tenderness over the left-sided lumbar joints (with the most intense pain left of 

the midline at L4-5). Dr. Paggioli diagnosed lumbar discogenic pain. A September 12, 2005 MRI 

 

3 Docket No. 13-2124 (issued April 21, 2014); Docket No. 14-2015 (issued March 18, 2015). 

4 OWCP assigned the claim File No. xxxxxx046.

5 OWCP paid appellant wage-loss compensation on the periodic rolls for disability commencing January 17, 2010. 

The case record reveals that OWCP has accepted the following prior traumatic employment injuries: a January 26, 

1983 sprain and medial meniscus tear of the right knee, assigned File No. xxxxxx677; a January 11, 1989 sprain and 

medial meniscus tear of the left knee assigned File No. xxxxxx526; a March 11, 1992 back contusion assigned File 

No. xxxxxx174; and a November 13, 2001 strain and subluxation of the left shoulder, assigned File No. xxxxxx433. 

Appellant’s prior claims have not been administratively combined.

6 Medical evidence subsequently entered into the case record reveals that appellant underwent L4-5 discectomies 

in 1980 and 1981.
3

scan of the low back showed multilevel degenerative disc changes. There was a small central disc 

herniation at L2-3 without discrete nerve impingement being evident. On January 20, 2010

Dr. Paggioli noted that appellant complained of pain in his low/mid back, left buttock, and left 

thigh, and he diagnosed degeneration of lumbosacral intervertebral disc and lumbosacral 

spondylosis.

The findings of an April 11, 2013 electromyogram and nerve conduction velocity 

(EMG/NCV) study of appellant’s left lower extremity showed no active or subacute radiculopathy 

but there was a possibility of a chronic radiculopathy based on reduced motor unit recruitment. 

The study did not show evidence of diffuse peripheral polyneuropathy.

On September 29, 2017 OWCP referred appellant for a second opinion examination to

Dr. Robert Moskowitz, a Board-certified orthopedic surgeon. It requested that Dr. Moskowitz 

provide an opinion regarding whether appellant continued to have residuals or disability causally 

related to his accepted January 10, 2002 employment injury.

In a November 8, 2017 report, Dr. Moskowitz discussed appellant’s factual and medical 

background, including the medical treatment he received for his January 10, 2002 employment 

injury. He briefly summarized medical reports, dated beginning in 1983, which referenced 

appellant’s complaints/symptoms involving the back and other body parts. Appellant reported to

Dr. Moskowitz that he had pain located in the left side of his low back and that “[e]very once in a 

while” he experienced numbness in his entire left leg and foot. Dr. Moskowitz indicated that, on 

physical examination, appellant had discomfort when bending from the side, more when bending 

to the left. Appellant could only bend forward to the extent that his hands were a little past his 

knees. Dr. Moskowitz noted that appellant probably could bend further, but that bending further 

would produce pain. He advised that, when in a lying position, appellant had some discomfort at 

end range of internal rotation with his left hip in extension and also internal rotation with his left 

hip in 90 degrees of flexion. Appellant exhibited depressed reflex in his right ankle.

Dr. Moskowitz indicated that appellant had been claiming unremitting pain since his January 10, 

2002 accident, at times at the 8/10 level, despite having been on light-duty work and having 

received medications, facet injections, physical therapy, and chiropractic treatment. He 

maintained that the latest medical literature showed that chronic unremitting pain such as in 

appellant’s case, particularly in the compensation setting, was psychosocial and not structural in 

origin. Dr. Moskowitz provided several quotes from Dr. Robert J. Barth, a clinical psychologist 

whom he characterized as an expert regarding mental illness and chronic pain. He noted that

Dr. Barth had said that it was highly unlikely for chronic pain in one body part to develop for 

someone who has not previously had significant problems with pain in other body parts.7 

Dr. Moskowitz noted that appellant had complained of pain and other symptoms “from his head 

to his toes” and then discussed medical reports, dated between 2003 and 2017, which referenced 

appellant’s complaints of pain and other symptoms/conditions involving various body parts, 

 

7 Dr. Moskowitz advised that Dr. Barth also indicated that psychological and social factors were the driving forces 

behind most chronic benign pain, especially when the presentation occurred within a legal claim.
4

including his head, chest, left shoulder, left finger, right hand, right elbow, low back, knees, and 

feet.

8

Dr. Moskowitz then further discussed the risk factors for chronic pain outlined by

Dr. Barth, noting the importance of the compensation setting in chronic pain, as was the case with 

appellant, as well as the risk of the presence of psychiatric disease in chronic pain. He reported 

that appellant informed him that he had periodically experienced anxiety due to interactions at 

work with supervisors and unspecified “bullies,” but he did not have depression and did not seek 

psychiatric treatment for anxiety because “he did not think it was that bad.” Dr. Moskowitz noted

that other risk factors for chronic pain included a history of chronic pain complaints for another 

part of the body, a previous history of filing medical-legal claims, being away from work, 

excessive health care, and use of narcotics. He discussed a number of prior work injury claims 

filed by appellant and referenced his use of narcotic pain medicine for 16 years. Dr. Moskowitz 

indicated that appellant’s symptoms were widespread in that at times he reported only having leftsided low back pain, but at other times he reported also having the added component of lower 

thoracic spine pain. He noted that appellant also would complain at times of bilateral low back 

pain, but that at other times the pain was isolated to his left sacroiliac joint. In addition, appellant 

reported at times that he had left lower extremity symptoms, but at other times only complained 

of right lower extremity symptoms. Dr. Moskowitz noted that the only positive test on physical 

examination that might support the existence of radiculopathy was a depressed reflex of his right 

ankle, but indicated that appellant’s primary symptoms were left-sided and that “local 

involvement” of his right ankle might have affected the ankle reflex. He maintained that an 

April 11, 2013 EMG/NCV study of the left lower extremity showed no active or subacute 

radiculopathy, and that a September 12, 2005 MRI scan of the lumbar spine revealed multilevel 

disc degenerative changes, including a small central herniation at L2-3 without discrete nerve root 

impingement. Dr. Moskowitz posted that the physical examination and diagnostic study findings 

did not support appellant’s chronic subjective pain complaints.

Dr. Moskowitz indicated that the latest medical literature showed that, because chronic

pain (pain for over three months) was psychosocial and not structural in origin, it followed that 

appellant’s claims of having chronic low back pain for over 151⁄2 years was not work related and 

therefore his January 10, 2002 low back strain had long since reached maximum medical 

improvement. He further opined that any psychogenic cause of appellant’s pain should be treated 

outside of the workers’ compensation system. Dr. Moskowitz noted that Dr. Barth had written

that the findings of scientific research on the subject of the causes of mental illness often failed to 

indicate any role in occupational exposures or any other type of adult life experience. He noted 

that work seemed to be a protective factor against psychological dysfunction rather than a cause 

of it. Dr. Moskowitz advised that scientific findings had indicated that psychological factors were

the best predictor of new onset low back pain and that the best predictors of the filing a workers’

compensation claim were job dissatisfaction and psychological vulnerability. He maintained that 

appellant’s chronic low back pain did not have a structural origin and, therefore he would not 

recommend any further chiropractic treatment. Dr. Moskowitz opined that appellant’s January 10, 

 

8 Dr. Moskowitz advised that appellant had undergone 10 prior surgeries, including right carpal tunnel surgery, left 

rotator cuff repair surgery, bilateral bunionectomies, right elbow surgery, and bone grafting in the fourth finger of the 

left hand.
5

2002 low back injury did not leave him with any residuals or disability. He advised that appellant 

had long since recovered from the January 10, 2002 low back injury and indicated that this injury 

would not be the reason he could not return to his job as a heavy mobile equipment mechanic.

Dr. Moskowitz asserted that there were nonwork-related factors, which would not allow appellant 

to return to this job, including the fact that the natural aging of his body would make it more 

difficult for him to perform heavy labor. He also maintained that not having performed heavy 

labor for 16 years would have rendered appellant’s body “out of shape.” Dr. Moskowitz indicated 

that appellant apparently had other conditions, including bilateral knee and left shoulder problems, 

that might prohibit him from working as a heavy mobile equipment mechanic.

9

In a January 23, 2018 letter, OWCP advised appellant that it proposed to terminate his 

wage-loss compensation and medical benefits, effective April 29, 2018, because he ceased to have 

residuals or disability causally related to his accepted January 10, 2002 employment injury. It 

informed appellant that the weight of the medical opinion evidence with respect to work-related 

residuals/disability rested with Dr. Moskowitz’ November 8, 2017 report. OWCP afforded 

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

Appellant submitted January 25 and March 22, 2018 reports in which Dr. Paggioli 

collectively noted appellant’s complaints of low back, left buttock, left thigh, and left calf pain, 

and diagnosed other intervertebral disc degeneration of the lumbar spine and long-term (current) 

use of opiate analgesic.

In reports dated December 27, 2017 through March 23, 2018, Dr. Benjamin Szczypek, an 

attending chiropractor, diagnosed subluxation complex (vertebral) of the lumbar region, other 

intervertebral disc degeneration of the lumbosacral region, lumbar ligament sprains, and thoracic 

spine pain.

By decision dated April 5, 2018, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective April 29, 2018, because he had no residuals or disability causally 

related to his accepted January 10, 2002 employment injury after that date. It found that the weight 

of the medical opinion evidence with respect to work-related residuals/disability rested with

Dr. Moskowitz’ November 8, 2017 report.

On March 6, 2019 appellant, through counsel, requested reconsideration of the April 5, 

2018 decision. Counsel argued that Dr. Moskowitz’ November 8, 2017 opinion that appellant 

ceased to have residuals of the accepted January 10, 2002 employment injury was not supported 

by adequate medical rationale.

In reports dated March 28 through April 27, 2018, Dr. Szczypek diagnosed subluxation 

complex (vertebral) of the lumbar region, other intervertebral disc degeneration of the lumbosacral 

region, lumbar ligament sprains, and thoracic spine pain.

In an August 10, 2018 report, Dr. Paggioli indicated that he had reviewed Dr. Moskowitz’

November 8, 2017 report and he maintained that appellant’s pain complaints had been consistent 

 

9 Dr. Moskowitz noted that he had only been asked to comment on whether appellant had residuals or disability 

related to the accepted January 10, 2020 “low back injury.”
6

since the date of his 2002 injury, i.e., low back pain, which radiated into his left buttock and left 

thigh with occasional pain noticed on the right side. He noted that appellant suffered from 

discogenic pain emanating from a disc itself, rather than from nerve compression. Dr. Paggioli 

advised that appellant’s pain was worse with bending forward, a symptom consistent with painful 

lumbar disc degeneration. He asserted that Dr. Moskowitz listed appellant’s multiple medical 

issues as though he were a hypochondriac. However, Dr. Paggioli maintained that appellant was 

not a hypochondriac as he had valid medical problems that required surgery or other medical 

treatment. Appellant did not have a significant psychological pathology and did not complain of 

multiple medical issues without being prompted. Dr. Paggioli advised that the fact that appellant 

had no back pain for decades following successful lumbar surgery, that pain occurred due to the 

accident at work in 2002, and that the pain had remained since that accident “shows that the 

accident aggravated his preexisting condition.”

In progress notes dated November 15 and December 17, 2018, Dr. Paggioli diagnosed 

L4-5 disc herniation and left lumbar radiculitis. He indicated that appellant was a candidate for 

L4-5 fusion surgery. In a February 26, 2019 report, Dr. Paggioli compared appellant’s MRI scans 

performed in 2004, 2006, 2009, and 2012, along with a 2012 computerized tomography (CT) scan. 

He advised that the MRI scan findings had worsened over the years.

By decision dated May 20, 2019, OWCP denied modification of the April 5, 2018 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.10 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.11 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.12

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

entitlement for disability compensation.13 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.14

 

10 D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

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

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

12 M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

13 A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 

ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).

14 See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).
7

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 April 29, 2018.

The Board has reviewed the November 8, 2017 opinion of Dr. Moskowitz and finds that it 

does not contain adequate medical rationale supporting a finding that appellant had no residuals or 

disability due to his accepted January 10, 2002 employment injury after April 29, 2018.15

In his November 8, 2017 report, Dr. Moskowitz opined that appellant had long since 

recovered from his January 10, 2002 low back injury and that he ceased to have any residuals or 

disability related to that injury. However, he did not provide any notable discussion of appellant’s 

accepted conditions from the January 10, 2002 incident (lumbosacral strain and displacement of 

lumbosacral disc without myelopathy) or describe the pathophysiological process through which 

they would have resolved. Importantly, Dr. Moskowitz provided no mention whatsoever that 

OWCP had accepted appellant’s claim for displacement of lumbosacral disc without myelopathy. 

He briefly referenced diagnostic tests from 2005 and 2013 to support his opinion that appellant 

ceased to have residuals of the January 10, 2002 employment injury by late-2017, but he did not 

provide a sufficient discussion of the diagnostic tests of record. Nor did Dr. Moskowitz adequately 

explain why the physical findings he obtained on physical examination supported a finding that 

appellant had no residuals of the January 10, 2002 employment injury or correlate these findings

to the diagnostic test results of record. He noted that the only positive test on physical examination 

that might support the existence of radiculopathy was a depressed reflex of appellant’s right ankle. 

Although Dr. Moskowitz generally noted that appellant’s primary symptoms were left-sided and 

that “local involvement” of the right ankle might have affected the ankle reflex, he did not provide 

sufficient explanation regarding why this finding would not show that appellant continued to have 

some residuals of his accepted January 10, 2002 employment injury. He reported that, on physical 

examination, appellant had limited motion and/or pain upon range of motion testing of the back 

and hips, but he did not adequately explain why these findings would not be related, at least in 

part, to the January 10, 2002 employment injury. Although Dr. Moskowitz indicated in his 

November 8, 2017 report that appellant had long since recovered from his January 10, 2002 low 

back injury, he did not provide any indication when or how this recovery occurred.

In his November 8, 2017 report, Dr. Moskowitz suggested that appellant’s low back and 

lower extremity symptoms could be explained by psychological or “psychosocial” reasons rather 

than by objective structural physical conditions.

16

 However, he did not identify a specific 

psychological condition or otherwise describe a nonwork-related psychological cause for 

appellant’s complaints. Dr. Moskowitz acknowledged that, upon questioning, appellant only 

 

15 See supra note 11. See also W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 

(issued October 4, 2018); Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical 

evidence, of such factors as a physician’s knowledge of the facts and medical history, and the care of analysis 

manifested and the medical rationale expressed in support of the physician’s opinion).

16 Dr. Moskowitz indicated that the latest medical literature showed that, because chronic pain (pain for over three

months) was psychosocial and not structural in origin, it followed that appellant’s claim of having chronic low back 

pain for over 151⁄2 years was not work related. He opined that any psychogenic cause of appellant’s pain should be 

treated outside of the workers’ compensation system.
8

referenced intermittent feelings of anxiety, which he felt were not serious enough to require 

treatment and the case record does contain medical evidence showing that appellant has a 

diagnosed psychological condition. He provided extensive quotes from medical literature 

regarding the risk factors for chronic pain, which he felt included not only psychological 

vulnerability, but also included factors such as a history of prior claim filing and experiencing 

symptoms in multiple body parts. Dr. Moskowitz then suggested that appellant’s pain complaints 

were related to these risks factors without adequately explaining how the specifics of appellant’s 

circumstances applied to the general principles he delineated. Such generalized discussions lack 

probative value with respect to the question of continuing work-related residuals/disability.17 

Dr. Moskowitz suggested appellant’s multiple complaints of symptoms outside the back region 

invalidated his complaints of back symptoms. He did not adequately explain why appellant’s 

multiple non-back conditions were not valid medical conditions and, in fact, the case record reveals 

that appellant underwent surgery and other significant medical treatment for a number of these 

conditions. Medical reports without adequate rationale on causal relationship are of diminished 

probative value and are insufficient to meet an employee’s burden of proof.18

For these reasons, OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 29, 2018.19

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 29, 2018. 

 

17 The Board has held that, in the absence of adequate interpretation by a physician in the context of a claimant’s 

specific case, medical texts and excerpts from publications lack probative value in establishing a medical issue given 

that such materials are of general application. See generally, D.F., Docket No. 20-0773 (issued December 8, 2020). 

18 J.R., Docket No. 20-0292 (issued June 26, 2020); C.J., Docket No. 18-0148 (issued August 20, 2018);

Franklin D. Haislah, 52 ECAB 457 (2001).

19 In light of the Board’s finding with regard to Issue 1, Issue 2 is rendered moot.
9

ORDER

IT IS HEREBY ORDERED THAT the May 20, 2019 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: April 7, 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