United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Stanhope, NJ, Employer

__________________________________________

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Docket No. 19-1516

Issued: May 14, 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 July 8, 2019 appellant, through counsel, filed a timely appeal from a January 30, 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 January 30, 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

ISSUE

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

compensation and medical benefits as she no longer had residuals or disability causally related to 

her accepted December 27, 2012 employment injury.

FACTUAL HISTORY

On December 27, 2012 appellant, then a 32-year-old rural carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that on that date she sustained a neck injury as a result 

of a motor vehicle accident while in the performance of duty. She stopped work on the date of 

injury and was treated at a hospital emergency room. OWCP initially accepted appellant’s claim 

for cervical, thoracic, and lumbar sprains. On June 20, 2013 it expanded the acceptance of the 

claim to include post-concussion syndrome. OWCP paid appellant wage-loss compensation on 

the supplemental rolls as of February 11, 2013, and on the periodic rolls as of June 30, 2013.

Appellant sought medical treatment from Dr. Avery Katz, a Board-certified neurologist. 

In a February 25, 2015 report, Dr. Katz noted appellant’s history of a December 27, 2012 motor 

vehicle accident and assessed post-concussion syndrome, memory loss, migraine, and anxiety.

In an August 4, 2015 report, Dr. Timothy Henderson, a Board-certified orthopedic 

surgeon, noted that appellant reported that she lost consciousness as a result of the December 27, 

2012 incident. He diagnosed lumbar sprain and cervical radiculopathy causally related to the 

December 27, 2012 incident and opined that she could work full time with restrictions.

On August 24, 2017 Dr. Katz noted that appellant had been seen for several years with 

dysfunctional headaches, fluctuating left-sided weakness and cognitive complaints after an 

employment-related accident. He indicated that she frequently decompensated from minimal 

emotional or physical stressors and that there were additional issues at home due to separation 

from her husband. Dr. Katz reported essentially normal general examination and neurological 

examination, with minimal give-way left weakness. He noted that appellant had a “longstanding 

history of headaches worsened by prior accident and history of fluctuating left-sided weakness and 

actually has been having more psychologic issues than other neurologic events.” Dr. Katz 

diagnosed: chronic PTSD, for which he recommended a psychologist; migraine without aura; and 

cognitive deficit in attention.

In April 2018, OWCP referred appellant, along with an updated statement of accepted facts 

(SOAF), the medical record and a list of questions, to Dr. Jeffrey Lakin, a Board-certified 

orthopedic surgeon, and Dr. Melvin P. Vigman, a Board-certified neurologist, for second opinion 

evaluations. The SOAF indicated that on February 27, 2012 appellant was involved in a motor 

vehicle accident and that she reported injury to the neck. It noted: the accepted conditions were 

sprain of neck; sprain of back, thoracic region; sprain of back, lumbar region; and post-concussion 

syndrome. OWCP requested that the physicians use the SOAF as a framework for their opinions 

and evaluate whether appellant continued to have residuals/disability causally related to her 

accepted December 27, 2012 employment injury.

In an April 24, 2018 report, Dr. Lakin reviewed the SOAF and appellant’s medical history 

and records. He noted that she reported a loss of consciousness when describing the December 27, 
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2012 incident. Dr. Lakin opined that appellant’s cervical, thoracic, and lumbar spine sprains were 

directly caused by the December 27, 2012 employment injury, but were no longer active. He 

found no objective findings on physical examination with regard to the accepted orthopedic 

conditions, reporting that the examination revealed minimal tenderness with excellent function of 

the cervical spine, upper extremities, thoracolumbar spine, and the lower extremities. Dr. Lakin 

opined that appellant had reached maximum medical improvement (MMI) as of April 24, 2018 

and that she was able to return to full-time, full-duty work without restrictions.

In an April 30, 2018 report, Dr. Vigman provided a second opinion neurological evaluation 

with regard to appellant’s accepted post-concussion syndrome. He reviewed appellant’s 

neurologically relevant medical records along with the SOAF and indicated that she had no history 

of head injury and no loss of consciousness from the December 27, 2012 incident.4 Dr. Vigman 

also performed a detailed neurological examination, noting decreased cutaneous sensation in the 

entire left side of the face and entire left upper and lower extremity areas, which he indicated was 

outside any standard neurological boundary and was considered a factitious sensory loss. He 

provided an impression of no neurological disease, damage, or dysfunction. Dr. Vigman opined 

that since there was no head injury or loss of consciousness, appellant’s neurological diagnoses 

related to cerebral functioning, including neuropsychological, and various headaches were not due 

to the December 27, 2012 employment injury. He indicated that the headaches were migraine type 

by history and that her mental dysfunction could not be considered due to the December 27, 2012 

employment injury since there was no head injury. Dr. Vigman also noted that there was no 

evidence of cervical radiculopathy on examination. He indicated that he saw evidence of factitious 

sensory loss, a diagnosis that implied exaggerated symptom magnification. Dr. Vigman opined 

that appellant had reached MMI with no neurological problems. He further opined that there was 

no need for further testing or treatment and that she could return to her date-of-injury position. 

Dr. Vigman indicated that the treatment of appellant’s migraines should continue, but it should not 

be considered related to the December 27, 2012 employment injury. He completed a work 

capacity evaluation (Form OWCP-5c), noting that she could perform full-time medium-type work 

with no restrictions.

In a May 10, 2018 letter, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits because she ceased to have residuals/disability causally 

related to her accepted December 27, 2012 employment injury. It advised her that the proposed 

action was based on the opinions of its second opinion physicians, Drs. Lakin and Vigman, and 

afforded her 30 days to submit additional evidence or argument challenging the proposed action.

OWCP subsequently received additional evidence, including an April 13, 2015 x-ray 

report, an April 13, 2015 state Range of Motion chart, and an April 14, 2016 blood work report.

In an April 17, 2016 narrative report, Dr. Changaramk Sivadas, an internal medicine 

specialist, indicated that appellant reported suffering a head injury in a December 2013 automobile 

accident while driving her mail vehicle with complaints of headaches, anxiety, insomnia, and 

memory problems since the accident. He indicated that her physical examination was 

 

4 Dr. Vigman noted that December 27, 2012 hospital report indicated a history of motor vehicle accident with neck 

pain and no serious injury. Appellant also denied any head injury and there was no visual change of paresthesia 

reported at the time. Dr. Vigman further explained that there was no contemporaneous record of a head injury 

associated with the December 27, 2012 employment injury. 
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unremarkable and provided a diagnosis of post-concussion syndrome. Dr. Sivadas also diagnosed 

blindness in the right eye and anemia.

In a June 29, 2017 attending physician’s report (Form CA-20), Dr. Katz diagnosed PTSD, 

cervical radiculopathy and headache caused or aggravated by the December 27, 2012 employmentrelated motor vehicle accident. He opined that she could return to part-time, light-duty work, and

gradually work her way to full-time work.

In a May 18, 2018 mental residual functional capacity assessment Judith Hancox, a 

licensed clinical social worker, diagnosed PTSD and post-concussion syndrome. She opined that 

appellant was totally disabled from work.

By decision dated July 18, 2018, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective July 22, 2018. It found that the weight of the medical evidence 

was represented by the well-rationalized medical opinions of Drs. Lakin and Vigman.

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

representative of OWCP’s Branch of Hearings and Review. A hearing was held on December 12, 

2018, during which appellant testified about the December 27, 2012 employment injury and her 

treatment by various physicians. She noted that she had been awarded social security disability 

benefits. Appellant testified that Dr. Vigman did not listen when she described the history of the 

December 27, 2012 employment injury. 

Additional evidence was received. In a February 1, 2018 report, Dr. Jerry Weber, a 

chiropractor, noted that appellant had significant injuries from a 2012 motor vehicle accident. He 

indicated that radiological findings were normal and diagnosed cervical radiculopathy and postconcussive syndrome.

In a March 5, 2018 report, Dr. Katz provided findings of vision loss, left-sided numbness, 

and weakness that seemed to stem from an employment-related accident when appellant was 

driving her mail truck in 2012. He indicated that no definitive abnormalities were seen on prior 

testing and that she has had various medication trials in the past. Dr. Katz noted increased 

symptoms and increased stressors. He diagnosed major depressive disorder, PTSD, tinnitus, vision 

loss, and insomnia.

In a July 25, 2018 note, Dr. Katz opined that all of appellant’s symptoms were the direct 

result of the December 27, 2012 employment incident and that her ongoing stressors continued to 

cause her condition to fluctuate. He opined that she could work four hours per day with 

restrictions.

In a December 12, 2017 report, Dr. Katz indicated that appellant had severe stressors. He 

diagnosed complicated migraine, major depressive disorder, psychologic conversion disorder, and 

chronic PTSD.

By decision dated January 30, 2019, an OWCP hearing representative affirmed OWCP’s 

July 18, 2018 termination decision. The hearing representative amended the accepted conditions 

to include cervical radiculopathy, based on Dr. Henderson’s 2015 second opinion examination, 

but found it resolved as of April 30, 2018, the date of Dr. Vigman’s second opinion evaluation.
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LEGAL PRECEDENT

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

termination or modification of an employee’s benefits.5 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.6 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.7

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

entitlement for disability compensation.8 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.9

ANALYSIS

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

compensation and medical benefits for the accepted conditions of cervical sprain, thoracic sprain, 

lumbar sprain, and cervical radiculopathy as she no longer had residuals or disability causally 

related to her accepted December 27, 2012 employment injury. 

OWCP accepted the conditions of cervical sprain, thoracic sprain, lumbar sprain, and postconcussion syndrome. In hisJanuary 30, 2019 decision, OWCP’s hearing representative expanded 

the accepted conditions to include a cervical radiculopathy, resolved as of April 30, 2018. The 

hearing representative also affirmed the termination of appellant’s wage-loss compensation and 

medical benefits effective July 22, 2018 for the accepted conditions of cervical sprain, thoracic 

sprain, lumbar sprain, and post-concussion syndrome based on the opinions of second opinion 

examiners, Drs. Lakin and Vigman. 

On April 24, 2018 appellant underwent a second opinion examination with Dr. Lakin with 

respect to the accepted orthopedic conditions of cervical sprain, thoracic sprain, and lumbar 

sprain.10 In his report, Dr. Lakin reviewed her medical history and presented findings on physical 

examination. He opined that appellant’s employment-related conditions were no longer active 

because of a normal physical examination with minimal tenderness on examination. Dr. Lakin 

opined that she had no need for additional treatment as she reached MMI and she was capable of 

 

5 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).

6 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).

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

8 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 and G. Peake, 41 ECAB 361, 364 (1990).

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

10 See 20 C.F.R. § 10.320.
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performing her usual job without restrictions. The Board has reviewed his opinion and finds that 

it has reliability, probative value, and convincing quality with respect to its conclusions regarding 

the relevant issue in the present case.11 Dr. Lakin’s opinion is based on a proper factual and 

medical history and he thoroughly reviewed the SOAF and medical records.12 He also provided 

medical rationale explaining that appellant no longer had residuals or disability caused by the 

accepted sprain conditions. The Board thus finds that OWCP properly relied on Dr. Lakin’s 

second opinion report in terminating her wage-loss compensation and medical benefits for the 

accepted orthopedic conditions of cervical sprain, thoracic sprain, and lumbar sprain.13

As noted, OWCP’s hearing representative amended the accepted conditions to include 

cervical radiculopathy, based upon appellant’s 2015 second opinion examination. The hearing 

representative, however, found that appellant’s cervical radiculopathy had resolved as of 

April 30, 2018, as Dr. Vigman did not find evidence of cervical radiculopathy. The Board notes 

that the record contains 2018 treatment notes from Dr. Weber, a chiropractor, who diagnosed 

cervical radiculopathy. Dr. Weber is only considered to be a qualified physician under FECA to 

the extent he diagnoses a subluxation demonstrated by x-ray.14 Consequently, he is not considered 

a physician under FECA and his opinions do not constitute probative medical evidence.15 Thus, 

there is no current objective medical examination finding or diagnostic testing which establishes 

evidence of a cervical radiculopathy. The Board accordingly finds that OWCP properly 

determined that the accepted cervical radiculopathy condition had resolved. 

The Board further finds that OWCP has not met its burden of proof to terminate her wageloss compensation and medical benefits for the accepted condition of post-concussion syndrome.

OWCP referred appellant for a second opinion neurological evaluation with Dr. Vigman 

to determine whether she had ongoing residuals or disability with regards to the accepted postconcussion syndrome. It noted that it provided him with a SOAF, the medical record, and a list of 

questions, which he acknowledged. In his April 30, 2018 report, Dr. Vigman noted the history of 

the employment injury, reviewed the medical records and the SOAF and found that there was no 

evidence of a head injury or loss of consciousness. He opined that since appellant had not 

experienced a head injury or loss of consciousness, her neurological diagnoses related to cerebral 

functioning, including neuropsychological and various headaches, were not due to the 

 

11 C.E., Docket No. 19-0661 (issued October 1, 2019); see also R.W., Docket No. 12-0375 (issued 

October 28, 2013).

12 See M.H., Docket No. 17-0210 (issued July 3, 2018); Melvina Jackson, 38 ECAB 443 (1987).

13 K.W., Docket No. 19-1224 (issued November 15, 2019).

14 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); B.K., Docket No. 19-0829 (issued September 25, 2019); T.C.,

Docket No. 19-0227 (issued July 11, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 

n.11 (2006) (under FECA the term physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by the applicable 

state law).

15 R.D., Docket No. 19-1528 (issued January 17, 2020); see Jay K. Tomokiyo, 51 ECAB 361 (2000).
7

December 27, 2012 employment injury. Dr. Vigman concluded that she had reached MMI from 

a neurological standpoint with no permanency and that she could return to her usual job without 

any restrictions. OWCP’s hearing representative found that Dr. Vigman’s examination showed 

that the accepted post-concussion syndrome condition, even if correctly diagnosed, was no longer 

active. 

The Board notes that the list of questions sent to Dr. Vigman directed him to refer to the 

SOAF and to use the SOAFs as the framework for his answers. 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.16 Dr. Vigman did not use the SOAF as the framework in forming his 

opinion. Rather, as counsel properly alleged on appeal, Dr. Vigman based his opinion that 

appellant no longer had residuals or disability from the accepted post-concussion syndrome as he 

had concluded that since she did not suffer a head injury or loss of consciousness. As he did not 

accept findings provided in the SOAF, which specifically noted the acceptance of the postconcussion syndrome condition, the probative value of his opinion is diminished and insufficient 

to be afforded the weight of the medical evidence.17 The Board therefore finds that OWCP failed 

to meet its burden of proof in terminating appellant’s wage-loss compensation and medical 

benefits, effective July 22, 2018, for the accepted condition of post-concussion syndrome.

On appeal, counsel contends that OWCP’s decisions did not refer to the psychological 

injuries that appellant also suffered as a result of the employment injury. For conditions not 

accepted as being employment related, it is the employee’s burden to provide rationalized medical 

evidence sufficient to establish causal relationship.18

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits for the accepted conditions of cervical sprain, thoracic 

sprain, lumbar sprain, and cervical radiculopathy. However, the Board finds that OWCP did not 

 

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

(October 1990); see J.T., Docket No. 18-1300 (issued March 22, 2019); L.J., Docket No. 14-1682 (issued 

December 11, 2015).

17 See J.T., id.; L.J., Docket No. 16-1852 (March 22, 2018).

18 See L.B., Docket No. 19-1380 (issued February 11, 2020); G.A., Docket No. 09-2153 (issued June 10, 2010); 

Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 ECAB 638 (2000).
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meet its burden of proof to terminate her wage-loss compensation and medical benefits for the 

accepted condition of post-concussion syndrome.

ORDER

IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and reversed in part.

Issued: May 14, 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