United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Princeton, NJ, Employer

__________________________________________

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Docket No. 20-0693

Issued: June 2, 2021

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 10, 2020 appellant, through counsel, filed a timely appeal from an October 29, 

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.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 The Board notes that, following the October 29, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure 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 October 4, 2018, as she no longer had 

residuals or disability causally related to her accepted October 18, 2017 employment injury; and 

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

disability or residuals, on or after October 4, 2018, due to the accepted October 18, 2017 

employment injury.

FACTUAL HISTORY

On October 18, 2017 appellant, then a 57-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that day she sustained left hand, left knee, and back injuries 

when she fell on an uneven pavement while in the performance of duty. She stopped work that 

day. OWCP accepted the claim for left hand third metacarpal bone fracture, fracture of phalanx 

of left thumb, lumbar sprain, and lower back muscle, fascia, and tendon strain. It paid appellant 

wage-loss compensation on its supplemental rolls, as of December 4, 2017, and on its periodic 

rolls effective April 1, 2018. 

By decision dated December 21, 2017, OWCP denied that the additional conditions of 

rupture of lumbar intervertebral disc, lumbar radiculopathy, and thoracic lumbar radiculopathy

were causally related to the October 18, 2017 employment injury. 

OWCP subsequently received an October 24, 2017 report, wherein Dr. Laura E. Ross, an 

osteopath and Board-certified orthopedic surgeon, noted appellant’s history of injury and medical 

history. Dr. Ross provided an impression of nondisplaced fracture of the third metacarpal head, 

left hand and proximal phalanx fracture of left thumb, and lumbar sprain/strain with lumbar 

radiculitis. She opined that appellant was totally disabled from work. The record reflects that

Dr. Ross continued to treat appellant, recommending diagnostic testing and physical/occupational

therapy along with other treatment modalities. 

In a May 29, 2018 report, Dr. Ross reported that appellant had been discharged from 

occupational therapy for her left hand, but still had left hand complaints. She also noted that 

appellant had complaints of worsening low back pain, which radiated down the left leg and that 

she had received an epidural injection and underwent a functional capacity evaluation (FCE). 

Dr. Ross diagnosed several nonaccepted back conditions and severe bilateral carpal tunnel 

syndrome. She recommended an electromyogram (EMG) study of the lower extremities and 

physical therapy of the lower back. Dr. Ross continued to opine that appellant was totally disabled

from work. 

On May 4, 2018 OWCP referred appellant to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation and opinion regarding whether appellant 

continued to have residuals and/or disability causally related to her accepted October 18, 2017 

employment injury.

In an August 3, 2018 report, Dr. Askin reviewed a statement of accepted facts (SOAF) and 

the medical record. Based on appellant’s clinical presentation, he opined that appellant’s accepted 

employment-related condition had resolved without residuals and that she was capable of returning 
3

to her date-of-injury position. Dr. Askin indicated that there were no objective findings referable 

to the October 18, 2017 employment injury. While appellant had slight droop of the right fifth 

finger distal interphalangeal (DIP) joint and a shortening of the distal phalanx of the left digit 

compared to the right, he indicated that those conditions had nothing to do with the employment 

injury. Despite appellant’s complaints of left-sided low back pain, Dr. Askin found no tenderness 

to the touch and no evidence of muscle spasm. He noted that appellant was able to rise from a 

bent over position without difficulty and straight leg rising was negative on both sides. Other 

examination findings were reported as normal. Dr. Askin explained that appellant’s complaints of 

pain was not an indication of a positive finding. While appellant suggested that she was unable to 

close the small digit against the ring digit of left, Dr. Askin indicated that it was under her control. 

He also reported that Phalen’s test was negative on the right and positive on the left, the Tinel’s 

test was positive at both carpal tunnels, and Finkelstein’s test for de Quervain’s and intersection 

syndrome were both negative. Dr. Askin concluded that appellant’s subjective complaints were 

not bolstered by any objective findings. He advised that the diagnostic testing revealed ageappropriate degenerative changes in her back and that her left hand fractures were no longer 

present by December 28, 2017. Dr. Askin opined that there were no current diagnosis causally 

related to the employment injury. He advised that it was not surprising that she had fully recovered 

from the employment injury as she had a number of months of convalescence and treatments to 

address her complaints. Dr. Askin indicated that her fractures should have resolved within one to 

two months and they were not the sort that anticipate future degradation of her musculoskeletal 

system. He noted that, while lumbar strains and sprains can sometimes take longer than one to 

two months to resolve, there should be steady progression of improvement such that fairly normal 

activities should be expected to resume within a couple of months. Dr. Askin indicated that the 

longevity of appellant’s complaints were unexpected along with the fact she had been treated with 

no expectation by the treating physician that she would ever stop complaining. He completed a

work capacity evaluation (Form OWCP-5c), noting that maximum medical improvement had been 

reached and appellant was capable of performing her regular job without restrictions. 

On August 14, 2018 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits based on Dr. Askin’s second opinion report. It afforded 

appellant 30 days to submit additional evidence and argument if she disagreed with the proposed 

termination. 

In response, appellant submitted physical therapy reports and an August 29, 2018 report, 

signed by a nurse practitioner.

Appellant also submitted an August 21, 2018 report, wherein Dr. Joan F. O’Shea, a Boardcertified neurosurgeon, noted the history of injury and appellant’s medical history. Dr. O’Shea

reported that appellant was status post left thumb and third finger fracture and that appellant 

reported that this was “good now.” She opined that appellant’s degenerative disc disease at L5-

S1 was exacerbated by the employment incident. Dr. O’Shaalso noted that appellant had low back 

pain to the left buttock and left leg and a small L5-S1 herniated disc. She opined that appellant 

could return to light-duty work with restrictions of no lifting over 50 pounds. Dr. O’Shea

recommended that appellant continue with epidural injections. 

In a September 4, 2018 report, Dr. Ross indicated that appellant could return to work with 

restrictions due to her multiple diagnoses of L5-S1 disc protrusion, S1 nerve impingement, status 

post left hand nondisplaced fracture of the third metacarpal and proximal phalanx of the left thumb, 
4

lumbar sprain and strain with left lower extremity radiculitis, and severe carpal tunnel syndrome 

bilaterally.

By decision dated October 3, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective October 4, 2018. It found that the weight of the 

medical evidence rested with Dr. Askin, the second opinion physician. 

On October 24, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

February 22, 2019.

OWCP subsequently received a December 28, 2017 x-ray of the left hand, which showed 

osteoarthritis with chronic moderate-to-severe arthropathy second DIP joint. 

Progress reports from Dr. Ross from September 2018 through February 2019 were 

received, which primarily addressed appellant’s disability and recommended additional diagnostic 

testing. In a September 20, 2018 report, Dr. Ross recommended that appellant remain off work 

and undergo physical therapy to include work conditioning, followed by an FCE. In subsequent 

progress reports, she recommended full-time light duty. In her February 5, 2019 report, Dr. Ross

indicated that the EMG/nerve conduction velocity (NCV) study of appellant’s bilateral lower 

extremities showed a left L4 radiculitis. A copy of the January 22, 2019 EMG/NCV report was 

provided. In a May 28, 2019 report, Dr. Ross recommended that appellant work part-time limited 

duty. 

By decision dated May 7, 2019, OWCP’s hearing representative affirmed OWCP’s 

October 3, 2018 decision. The hearing representative specifically noted that OWCP only had the 

burden to establish that the accepted conditions of the back sprain and phalanx fractures had 

resolved without residuals. The hearing representative found that there was no rationalized 

medical opinion from Dr. Ross, which explained that appellant remained disabled and required 

ongoing medical treatment due to the accepted employment injury. 

Dr. Ross continued to submit progress notes. Evidence pertaining to appellant’s 

nonaccepted back conditions was also received. 

On September 24, 2019 appellant, through counsel, requested reconsideration and 

submitted additional evidence. 

In a September 23, 2019 report, Dr. Ross reviewed Dr. Askin’s second opinion report and 

noted her concerns, including that Dr. Askin might not have reviewed all of the objective medical 

findings and might have mischaracterized other objective medical findings, such as the diagnostic 

testing. She explained that appellant did not have degenerative lumbar spine changes, but rather 

that her magnetic resonance imaging (MRI) scan showed central disc herniation adjacent to the 

thecal sac traversing the S1 nerve root at the L5-S1 level. Dr. Ross also indicated that appellant’s 

complaints were consistent with the mechanism of injury of falling onto her left side. 

On September 26, 2019 OWCP requested that Dr. Askin provide a supplemental opinion 

addressing the concerns set forth in Dr. Ross’ September 23, 2019 report.
5

In an October 10, 2019 supplemental report, Dr. Askin reviewed Dr. Ross’ September 23, 

2019 medical report and found that the conclusion expressed in his August 3, 2018 report remained 

unchanged as Dr. Ross offered no data that caused him to arrive at a different conclusion. He 

indicated that he had conformed to OWCP’s instruction that the SOAF was binding and that his 

report was based on an analysis of appellant’s history, clinical examination, and the available 

records. Dr. Askin also advised that he was aware of the EMG finding of severe carpal tunnel 

bilaterally as well as her MRI scan findings. 

By decision dated October 29, 2019, OWCP denied modification of its May 7, 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

ANALYSIS -- ISSUE 1

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

compensation and medical benefits, effective October 4, 2018, as she no longer had residuals or 

disability causally related to her accepted October 18, 2017 employment injury. 

In an August 3, 2018 report, Dr. Askin, an OWCP referral physician, found that there were 

no objective findings referable to the October 18, 2017 employment injury. He indicated that the 

slight droop of the right fifth finger DIP joint and shortening of the distal phalanx of the left digit 

 

4 D.B., Docket No. 19-0663 (issued August 27, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 

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

5 A.R., Docket No. 20-0335 (issued August 7, 2020); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 

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

6 V.S., Docket No. 19-1792 (issued August 4, 2020); K.W., Docket No. 19-1224 (issued November 15, 2019); 

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

7 A.T., Docket No. 20-0334 (issued October 8, 2020); 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).

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

(2002); Furman G. Peake, id.
6

were unrelated to the employment injury. Dr. Askin found that appellant’s complaints of leftsided low back pain was not supported by objective examination findings. He further found that 

appellant’s inability to close the small digit against the ring digit of left was under her control. 

Dr. Askin noted that Phalen’s test was negative on the right and positive on the left. Tinel’s test 

was positive at both carpal tunnels, and Finkelstein’s test for de Quervain’s and intersection 

syndrome were both negative. Dr. Askin reported that the diagnostic testing revealed ageappropriate degenerative changes in her back and that her fractures were no longer present by 

December 28, 2017. He concluded that appellant’s subjective complaints were not bolstered by 

any objective findings and that she was no longer suffering from residuals of the accepted 

employment conditions as they had resolved. Dr. Askin further opined that maximum medical 

improvement had been reached and appellant was capable of performing her regular job without 

restrictions. He noted that the longevity of her complaints were unexpected given the number of 

months of convalescence and her medical treatments. Dr. Askin advised that her fractures should 

have resolved within one to two months. He noted that, while lumbar strains and sprains can 

sometimes take longer than one to two months to resolve, there should be steady progression such 

that by a couple of months resumption of fairly normal activities should be expected. 

Dr. Askin based his opinion on a proper factual and medical history and physical 

examination findings and provided medical rationale for his opinion.9 He provided a wellrationalized opinion based on medical evidence regarding the accepted conditions causally related 

to appellant’s October 18, 2017 employment injury.10 Dr. Askin found no basis on which to 

attribute any residuals or continued disability to appellant’s accepted employment-related 

conditions. His opinion is found to be probative evidence and reliable. The Board, thus, finds that

Dr. Askin’s opinion constitutes the weight of the medical evidence and is sufficient to justify 

OWCP’s termination of benefits for the accepted conditions of fracture of third metacarpal bone, 

left hand, fracture of phalanx of left thumb, a lumbar sprain, and a lumbar strain. 

The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss 

compensation and medical benefits is insufficient to overcome the weight afforded to Dr. Askin 

as the second opinion physician. Appellant submitted an August 21, 2018 report from Dr. O’Shea, 

who opined that appellant could return to light-duty work with restrictions of no lifting over 50 

pounds. Dr. O’Shea indicated that appellant was status post left thumb and third finger fracture, 

noting that appellant reported that this was “good now.” However, she provided no opinion on the 

remaining accepted employment-related conditions. Thus, her report was insufficient to overcome 

the weight of the evidence as represented by Dr. Askin.

OWCP also received a September 4, 2018 report from Dr. Ross, which indicated that 

appellant could return to work with restrictions due to her multiple diagnoses of L5-S1 disc 

protrusion, S1 nerve impingement, status post left hand nondisplaced fracture of the third 

metacarpal and proximal phalanx of the left thumb, lumbar sprain and strain with left lower 

extremity radiculitis, and severe carpel tunnel syndrome bilaterally. However, Dr. Ross failed to 

offer an opinion addressing why appellant continued to have residuals or disability for work due 

to the accepted conditions from the October 18, 2017 employment injury. The Board finds that

 

9 See B.B., Docket No. 18-0732 (issued March 11, 2020); W.C., Docket No. 18-1386 (issued January 22, 2019); 

Melvina Jackson, 38 ECAB 443 (1987).

10 See A.T., supra note 7. 
7

Dr. Ross’ conclusory opinion was insufficient to establish that appellant still had residuals and 

disability causally related to her accepted employment injury.11

Appellant also submitted an August 29, 2018 report, signed soley by a nurse practitioner

and physical therapy reports. These reports do not constitute competent medical evidence because 

neither a nurse practitioner nor a physical therapist is considered a “physician” as defined under 

FECA.12 Consequently, the medical findings and/or opinions of a nurse practitioner or physical 

therapist will not suffice for purposes of establishing entitlement to compensation benefits.13

OWCP also received diagnostic testing. The diagnostic tests offered no opinion regarding 

any continued disability or residuals causally related to the accepted injury. The Board has found 

that diagnostic tests, standing alone are, therefore, of limited probative value.14

LEGAL PRECEDENT -- ISSUE 2

Once OWCP properly terminates a claimant’s compensation benefits, the burden shifts to 

appellant to establish continuing disability or residuals after that date causally related to the 

accepted injury.15 To establish causal relationship between the condition as well as any attendant 

disability claimed and the employment injury, an employee must submit rationalized medical 

evidence based on a complete medical and factual background, supporting such causal 

relationship.16

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to establish continuing 

employment-related disability or residuals, on or after October 4, 2018, due to the accepted 

October 18, 2017 employment injury.

In a September 23, 2019 report, Dr. Ross reviewed Dr. Askin’s report and noted her 

concerns, including that Dr. Askin might not have reviewed all of the objective medical findings 

and might have mischaracterized other objective medical findings, such as the diagnostic testing. 

 

11 See E.S., Docket No. 20-0673 (issued January 11, 2021).

12 Section 8101(2) of FECA 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.” 

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

Relationship, Chapter 2.805.3a(1) (January 2013); M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 

ECAB 271, 279 (2007); David P. 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); R.L., Docket 

No. 19-0440 (issued July 8, 2019) (neither a nurse practitioner nor a physical therapist is a physician under FECA.

13 Id.

14 See A.F., Docket No. 17-1514 (issued April 10, 2018); C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., 

Docket No. 08-2214 (issued May 6, 2009).

15 See D.G., Docket No. 19-1259 (issued January 29, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019); 

J.R., Docket No. 17-1352 (issued August 13, 2018).

16 Id.
8

However, she failed to provide an opinion explaining why appellant had continued disability or 

residuals or need for medical treatment as a result of the accepted conditions related to the 

employment injury. Medical evidence that does not offer an opinion regarding the cause of an 

employee’s condition or disability is of no probative value on the issue of causal relationship.17 

Thus, the Board finds that her report is insufficient to meet appellant’s burden of proof.18

In an October 10, 2019 supplemental report, second opinion physician Dr. Askin found 

that the conclusion expressed in his August 3, 2018 report remained unchanged. He indicated that

Dr. Ross offered no data that caused him to arrive at a different conclusion and that he was aware 

of the EMG finding of severe carpal tunnel bilaterally as well as her MRI scan findings. Dr. Askin 

advised that he had conformed to OWCP’s instruction that the SOAFs was binding. He further 

advised that his report was based on an analysis of appellant’s history, clinical examination, and 

the available records. The Board finds that the medical evidence of record is insufficient to 

overcome the weight accorded to Dr. Askin’s second opinion or to create a conflict.19

As there is no medical evidence of record sufficient to establish that appellant continued to 

have residuals or disability on or after October 4, 2018, due to the accepted October 18, 2017 

employment injury, the Board finds that she has not met her burden of proof.

On appeal counsel contends that Dr. Askin, a hand surgeon, does not treat spine injuries 

and does not regularly interpret lumbar MRI scan films. He argued that appellant should have 

been evaluated by a referee orthopedist. However, as found above, there is no conflict in the 

medical opinion evidence.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

compensation and medical benefits, effective October 4, 2018, as she no longer had residuals or 

disability causally related to her accepted October 18, 2017 employment injury. The Board also 

finds that appellant has not met her burden of proof to establish continuing employment-related 

 

17 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18 M.E., Docket No. 18-0940 (issued June 11, 2019).

19 See J.D., Docket No. 18-0101 (issued August 27, 2018); K.E., Docket No. 17-1216 (issued February 22, 2018).
9

disability or residuals, on or after October 4, 2018, due to the accepted October 18, 2017 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the October 29, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 2, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board