United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer

__________________________________________

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Docket No. 21-0104

Issued: February 24, 2022

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 October 29, 2020 appellant, through counsel, filed a timely appeal from an August 26, 

2020 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.

ISSUES

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

wage-loss compensation and medical benefits, effective January 17, 2020, as she no longer had 

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

residuals or disability causally related to the accepted October 8, 2005 employment injury; and 

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

or after January 17, 2020, causally related to her accepted October 8, 2005 employment injury. 

FACTUAL HISTORY

On October 8, 2005 appellant, then a 49-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she suffered injuries when she fell down wet stairs 

while in the performance of duty. She stopped work that day and has not returned. OWCP 

assigned the claim OWCP File No. xxxxxx916 and accepted it for thoracic or lumbosacral neuritis 

or radiculitis, brachial neuritis or radiculitis, displacement of thoracic intervertebral disc without 

myelopathy, displacement of cervical intervertebral disc without myelopathy, and sprain of right 

shoulder and upper arm. It paid appellant wage-loss compensation on the supplemental rolls as of 

November 25, 2005, and on the periodic rolls as of March 19, 2006.3 On February 27, 2008 

appellant underwent an OWCP-authorized cervical discectomy and decompression at C5-C8 and 

C6-C7, with anterior cervical interbody fusion at C5-C8 and C6-C7.

In a November 17, 2016 medical report, Dr. Gregory J. Lawler, a Board-certified 

anesthesiologist, indicated that appellant continued with lumbar pain.

In a March 14, 2018 medical report, Dr. Mark Filippone, a Board-certified physiatrist, 

opined that appellant was totally disabled from work.

On August 9, 2019 OWCP referred appellant for a second opinion medical examination 

with Dr. Stanley Askin, a Board-certified orthopedic surgeon to determine the status of appellant’s 

accepted condition and work capacity. In a September 13, 2019 report, Dr. Askin reviewed an

August 7, 2019 statement of accepted facts (SOAF), which did not reference appellant’s accepted 

injury in OWCP File No. xxxxxx390.

4

 He also reviewed a September 4, 2015 magnetic resonance 

imaging (MRI) scan of appellant’s right shoulder and a January 14, 2019 MRI scan of her lumbar 

spine. Dr. Askin noted appellant’s physical examination findings, including findings involving 

the right shoulder and bilateral carpal tunnel. He indicated that appellant’s physical presentation 

was one of overt pain behavior. Dr. Askin opined that there were no objective findings, other than 

the changes imposed by the surgery upon her cervical spine and age-related changes, and that her 

subjective complaints were markedly exaggerated compared with objective findings. He opined 

that appellant had fully recovered from the accepted conditions resulting from her 2005 injury, 

given the 14-year period of convalescence. Dr. Askin concluded that appellant had no need for 

further medical treatment and that she could return to her date-of-injury position as a mail handler 

as there was no objective manifestation of any musculoskeletal consequence of the October 8, 

2005 injury.

On October 1, 2019 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits, finding that the report of second opinion physician

3 Appellant has a prior claim for an April 12, 2002 traumatic injury, accepted under OWCP File No. xxxxxx390 for 

right shoulder impingement syndrome.

4

Id.
3

Dr. Askin represented the weight of the medical evidence that appellant no longer had any 

residuals or continuing disability from work due to her October 8, 2005 employment injury. It 

afforded her 30 days to submit additional evidence or argument.

In a letter dated October 9, 2019, appellant, through counsel, alleged that the SOAF 

provided to Dr. Askin was deficient as it failed to note that appellant’s February 27, 2008 cervical 

fusion surgery was authorized by OWCP, and it failed to reference appellant’s prior claims. 

By decision dated January 16, 2020, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective January 17, 2020. It found that the weight of 

the medical evidence, represented by Dr. Askin’s report, established that she no longer had 

residuals or disability from work due to her October 8, 2005 employment injury.

On January 23, 2020 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held telephonically on 

April 29, 2020. Appellant submitted additional evidence, including: a November 30, 2007 MRI 

scan of the cervical spine; September 19, 2008 cervical spine x-rays;January 14, 2009 MRI scan 

of the lumbar spine;September 4, 2015 MRI scan of the right shoulder;November 8, 2019 cervical 

spine x-ray report; a November 8, 2019 right shoulder x-ray report; and a November 8, 2019 

lumbar MRI scan report. The November 8, 2019 cervical spine x-ray report noted reversal of the 

normal lordotic curvature in the lateral view with associated mild flexion deformity with convexity 

towards the left and restriction of motion in extension, the November 8, 2019 right shoulder x-ray 

report noted a high riding humeral head, and the November 8, 2019 lumbar MRI scan noted 

posterior disc herniation at L5-S1 with associated annular tear, slight straightening of the normal 

lordotic curvature of the lumbar spine suggestive of muscle spasm and lumbar myalgia, and 

umbilical hernia containing omental adipose tissue.

In an October 31, 2019 medical report, Dr. Laura E. Ross, an osteopathic physician Boardcertified in emergency medicine, noted positive examination findings and provided an impression 

of history of cervical, thoracic, and lumbar spinal disc pathology and right shoulder impingement. 

She opined that appellant was currently disabled and unable to work due to her injuries.

In a December 11, 2019 report, Dr. Ross reviewed appellant’s recent lumbar MRI scan, 

cervical x-ray and right shoulder x-ray reports and provided examination findings, which included

right shoulder crepitus with positive impingement signs. She opined that appellant appeared to 

have a herniated disc at L5-S1, cervical spondylosis and possible junctional syndrome above the 

fusion in her neck, and impingement of her right shoulder. Dr. Ross recommended pain 

management, which she opined was medically necessary and causally related to the October 8, 

2005 employment injury.

A hearing was held on April 29, 2020. By decision dated June 25, 2020, the hearing 

representative affirmed OWCP’s January 16, 2020 termination decision, finding that no 

rationalized conflicting medical evidence had been received, which disagreed with Dr. Askin’s 

report. The hearing representative found, however, that further development was required to 

determine whether appellant’s work-related injuries had resolved. The hearing representative

related that the instant case should be administratively combined with OWCP File No. xxxxxx390, 

that the SOAF should be updated, and that all pertinent medical evidence from appellant’s prior 
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shoulder injury should be referred to Dr. Askin. Dr. Askin was then to provide a supplemental 

report addressing whether appellant had residuals of her October 8, 2005 employment injury. The 

hearing representative also indicated that appellant’s November 8, 2019 diagnostic tests should be 

referred to Dr. Askin for review.

On July 16, 2020 OWCP administratively combined appellant’s present claim with OWCP 

File No. xxxxxx390, with the present claim serving as the master file number. It then issued an 

updated SOAF5 and referred the case record to Dr. Askin for a supplemental opinion regarding 

whether appellant had residuals of her April 12, 2002 and October 8, 2005 employment injuries 

and if further medical treatment was warranted due to the accepted injuries.

In a June 5, 2020 report,Dr. Ross indicated that she disagreed with Dr. Askin’s conclusions 

in his September 13, 2019 report. She opined, based in part on diagnostic testing not available to

Dr. Askin, that appellant’s conditions from the October 8, 2005 work-related injury had not 

resolved as she had continued findings consistent with her complaints after the October 8, 2005 

injury. Dr. Ross also opined that, since appellant had long-term sequelae resulting from her 

employment injuries, she was unable to work full-time, full duty.

In a July 29, 2020 supplemental report, Dr. Askin reviewed the July 16, 2020 SOAF and 

the diagnostic evidence and medical reports, which were received following his September 13, 

2019 evaluation. He opined that the updated documentation was unpersuasive that appellant’s 

condition persisted for either the April 12, 2002 or October 8, 2005 injuries that would preclude 

her from resuming her date-of-injury employment. Dr. Askin also opined that further medical 

treatment was not warranted.

By decision dated August 26, 2020, OWCP denied modification of the January 16, 2020 

termination 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.6 It may not terminate compensation 

without establishing that the disability had ceased or that it was no longer related to the 

5 The July 16, 2020 SOAF referenced OWCP File No. xxxxxx390 and listed appellant’s diagnostic testing, her 

February27, 2008 spinal surgery, andsecond opinion examinations. 

6

See S.H., Docket No. 19-1855 (issued March 10, 2021); S.F., 59 ECAB 642 (2008); KellyY. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
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employment.7 OWCP’s burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 17, 2020, as she no longer had residuals 

or disability causally related to the accepted October 8, 2005 employment injury. 

OWCP based its decision to terminate appellant’s wage-loss compensation and medical 

benefits on the September 13, 2019 opinion of Dr. Askin, OWCP’s second opinion physician, who 

found that the accepted conditions had ceased with no residuals and that appellant had no longer 

had disability causally related to the accepted October 8, 2005 employment injury. 

The Board finds, however, that the SOAF provided to Dr. Askin on August 7, 2019 was 

deficient, as it failed to note that appellant had a prior claim pertaining to her accepted right 

shoulder condition under OWCP File No. xxxxxx390 and that the February 27, 2008 spinal 

surgery had been authorized by OWCP. OWCP’s procedures dictate that, when an OWCP medical 

adviser, second opinion specialist, or impartial medical examiner 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.9 The Board finds that as Dr. Askin based his September 13, 2019 report on an 

inaccurate SOAF, the probative value of his opinion is diminished.10

Once OWCP undertook development of the record it was required to complete 

development of the record by procuring medical evidence that would resolve the relevant issue in 

the case.11 As OWCP did not provide an accurate SOAF to the second opinion physician, the 

Board finds that it did not meet its burden of proof in terminating appellant’s wage-loss 

compensation and medical benefits.12

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

entitlement to wage-loss compensation and medical benefits, effective January 17, 2020, as she no 

7 G.T., Docket No. 18-01302 (issued October 22, 2019); A.G., Docket No. 18-0749 (issued November 7, 2018);see 

I.J., 59 ECAB 408 (2008); ElsieL. Price, 54 ECAB 734 (2003).

8

See T.M., Docket No. 19-1068 (issued March 30, 2021); R.R., Docket No. 19-0173 (issued May2, 2019); Del K. 

Rykert, 40 ECAB 284 (1988).

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

(October 1990);see S.C., Docket No. 18-1011 (issued March 23, 2020).

10 See P.C., Docket No. 20-0935 (issued February 19, 2021).

11 See C.B., Docket No. 20-0629 (issued May26, 2021); J.F., Docket No. 17-1716 (issued March 1, 2018).

12 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
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longer had residuals or disability causally related to her accepted October 8, 2005 employment 

injury. 

ORDER

IT IS HEREBY ORDERED THAT the August 26, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: February 24, 2022

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