United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.C., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 20-1163

Issued: July 13, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 18, 2020 appellant filed a timely appeal from a March 17, 2020 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.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 9, 2019, as he no longer had residuals 

or disability causally related to his accepted December 20, 2004 employment conditions; and 

(2) whether appellant has met his burden of proof to establish continuing employment-related 

disability or residuals on or after October 9, 2019.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On December 20, 2004 appellant, then a 43-year-old painter, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he injured his back when shoveling, bagging, and throwing 

bags of rocks into a dumpster while in the performance of duty. He stopped work on 

December 21, 2004. OWCP initially accepted appellant’s claim for thoracolumbar strain. It paid 

him wage-loss compensation on the supplemental rolls, effective March 2, 2005, and on the 

periodic rolls, effective September 4, 2005.

In a report dated November 28, 2017, Dr. James H. Henick, Board-certified in 

anesthesiology and interventional pain, diagnosed lumbar sprain, lumbar spondylosis, lumbar facet 

arthropathy, and degeneration of the lumbar intervertebral disc. He performed an OWCPauthorized thermocoagulation of the lumbar medial branch nerves at L3-4, L4-5, and L5-S1 on 

that day.

In a letter addressed to the Department of Veterans Affairs dated November 7, 2018, 

OWCP noted that appellant’s claim was accepted for lumbar sprain, and thoracic or lumbosacral 

neuritis or radiculitis not otherwise specified, and that it was adjudicating appellant’s entitlement 

to FECA wage-loss compensation.

On May 14, 2019 OWCP referred appellant for a second opinion examination, along with 

a statement of accepted facts (SOAF), a series of questions, and the medical record to Dr. James 

Schwartz, a Board-certified orthopedic surgeon, to determine the extent and degree of any workrelated disability and whether appellant continued to suffer from residuals of his accepted workrelated conditions. The SOAF provided to Dr. Schwartz noted that the case was only accepted for 

thoracolumbar strain.

In an August 23, 2019 report, Dr. Schwartz noted his review of the SOAF and medical 

records. He examined appellant and noted that appellant sat “awkwardly,” had a slow reciprocal 

gait, could barely get his heels off the floor, could not lift his toes off the floor when trying to stand 

on his heels, could not straighten at the hips, and was unable to extend his spine into the normal 

lordotic position. Dr. Schwartz opined that appellant had non-physiologic pain behavior and his 

subjective complaints did not correspond to objective findings. He advised that the soft tissue 

thoracolumbar strain had resolved and that appellant’s lumbar degenerative disease was unlikely 

to have been aggravated by the work-related injury. Dr. Schwartz opined that appellant’s present 

level of disability was not due to his accepted condition of thoracolumbar strain, but rather was 

due to non-physiological pain behavior. He opined that appellant had “no diagnosed structural 

injury, and all symptoms from this injury should have resolved.” Dr. Schwartz advised that, 

“There is no need for any further treatment. Treatment is unlikely to help in any manner.”

On September 5, 2019 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits, based upon the opinion of Dr. Schwartz that the accepted conditions had 

resolved without residuals or disability. It afforded appellant 30 days to submit additional evidence 

or argument challenging the proposed termination.

In a letter dated September 26, 2019, appellant indicated that he was responding to the 

September 5, 2019 letter from OWCP. He advised that he was still having problems with both 
3

knees, back pain, and was unable to work. Appellant alleged that Dr. Schwartz did not perform a 

physical examination.

In reports dated September 17 and 18, 2019, Dr. Theresa Jackson, Board-certified in 

physical medicine and rehabilitation, reviewed diagnostic test results of the lumbar spine from 

September 17, 2019, and a lumbar spine magnetic resonance imaging (MRI) scan from 

December 7, 2016. She diagnosed in pertinent part lumbar sprain, lumbar radiculopathy, lumbar 

facet arthropathy, muscle spasm, and other chronic pain. Dr. Jackson also noted disc bulges and 

facet arthropathy at L3, L4-L5, and S1, mild-to-moderate narrowing of the neural foramen and 

central canal, and mild progression of degenerative disease.

OWCP received a September 25, 2019 MRI scan of appellant’s lumbar spine, which 

revealed moderate spinal stenosis at L4-5 and crossing nerve contact on the left at L3-4 and L4-5.

By decision dated October 9, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective October 9, 2019, finding that the medical evidence submitted was 

insufficient to outweigh Dr. Schwartz’s opinion.

On December 18, 2019 appellant requested reconsideration and submitted additional 

evidence.

In October 21, 2019 treatment notes, Dr. Jackson diagnosed lumbar radiculopathy,

lumbosacral neuritis, lumbar spine ligaments sprain, lumbar facet arthropathy, muscle spasm, and 

other chronic pain. She performed an L3-4 lumbar nerve block and noted that appellant was 

scheduled for surgery.

OWCP also received hospital records dated September 25 and October 8, 2019, and results 

from an October 8, 2019 bone scan.

By decision dated March 17, 2020, OWCP denied modification of the October 9, 2019 

termination decision, finding that the opinion of Dr. Schwartz constituted the weight of the medical 

evidence in concluding that appellant had no employment-related residuals or disability.

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.2 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 

 

2 See A.T., Docket No. 20-0334 (issued October 8, 20202); 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).
4

the employment.3 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.4

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

entitlement for disability compensation.5 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.6

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 October 9, 2019.

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

status of his accepted conditions and his work capacity. In his August 23, 2019 report,

Dr. Schwartz described appellant’s December 20, 2004 employment injury and noted that the 

SOAF listed thoracolumbar strain as the accepted condition. However, the Board notes that 

OWCP also accepted the claim for thoracic or lumbosacral neuritis or radiculitis not otherwise 

specified. It is OWCP’s responsibility to provide a complete and proper frame of reference for a 

physician by preparing a SOAF.7 OWCP’s procedures dictate that when an OWCP medical 

adviser, second opinion specialist, or referee physician renders a medical opinion based on a 

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

his or her opinion, the probative value of the opinion is seriously diminished or negated altogether.8 

As Dr. Schwartz was not provided with an accurate SOAF, his report was based upon an inaccurate 

or incomplete history. The Board, therefore, finds that his report was insufficient to constitute the 

weight of the medical opinion evidence and to establish that appellant no longer had any 

employment-related residuals or disability. OWCP, therefore, did not meet its burden of proof to 

terminate appellant’s compensation benefits.9

 

3 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).

4 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).

5 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).

6 K.W., supra note 4; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 

(2002); Furman G. Peake, id.

7

J.N., Docket No. 19-0215 (issued July 15, 2019); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 

677 (2005).

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

(October 1990); see L.J., Docket No. 14-1682 (issued December 11, 2015).

9 Furman G. Peake, supra note 6; Sarah A. Lawson, Docket No. 04-825 (issued July 13, 2004).
5

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 9, 2019.10

ORDER

IT IS HEREBY ORDERED THAT the March 17, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: July 13, 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

 

10 In light of the disposition of Issue 1, Issue 2 is rendered moot.