United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fremont, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0763

Issued: November 4, 2022

Appearances: Case Submitted on the Record

Brett E. Blumstein, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 19, 2022 appellant, through counsel, filed a timely appeal from an October 26, 

2021 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 issuance of October 26, 2021 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 a tthe 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: (2) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation benefits and medical benefits, effective October 26, 2021, as she no 

longer had residuals or disability causally related to her accepted July 7, 2020 employment injury; 

and (2) whether appellant has met her burden of proof to establish that acceptance of her claim 

should be expanded to include the conditions of lumbar intervertebral disc disorder with 

radiculopathy, and presence of right artificial hip. 

FACTUAL HISTORY

On July 10, 2020 appellant, then a 67-year-old postal support employee (PSE) clerk, filed 

a traumatic injury claim (Form CA-1) alleging that on July 7, 2020 she injured her back as a result 

of pulling, lifting, throwing, and emptying sacks of mail weighing 40 to 50 pounds while in the 

performance of duty. She stopped work on July 8, 2020. 

OWCP accepted the claim for sprain of ligaments of the lumbar spine. It paid her wageloss compensation on the supplemental rolls as of August 24, 2020.

OWCP received medical reports dated February 22 and April 5 and 19, 2021 from

Dr. Douglas J. Abeles, an attending Board-certified orthopedic surgeon. Dr. Abeles recounted a 

history of the July 7, 2020 employment injury and appellant’s medical treatment. He noted her 

current complaint of back pain with sciatica into her right leg and pain in her right hip. Dr. Abeles 

reported his findings on physical examination and reviewed diagnostic test results. He diagnosed 

the accepted condition of sprain of ligaments of the lumbar spine, lumbar region intervertebral disc 

disorders with radiculopathy, and presence of right artificial hip joint. Dr. Abeles noted appellant’s 

treatment plan and work restrictions. 

On May 13, 2021 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questions, to Dr. John H. Welborn, Jr., a Board-certified orthopedic 

surgeon, for a second opinion examination to determine whether appellant continued to have 

residuals or disability causally related to her July 7, 2020 employment injury.

On July 12, 2021 counsel requested that appellant’s claim be expanded to include the 

diagnoses of lumbar intervertebral disc disorder with radiculopathy and presence of right artificial 

hip. 

Dr. Welborn, in a July 12, 2021 report, reviewed the SOAF and appellant’s medical record. 

He noted a history thatshe suffered a mild lumbar strain which was causally connected to her work 

injury on July 22, 2020. Dr. Welborn indicated that she had a femoral neck fracture which was 

nonwork related. He reported his findings on examination and provided assessments of the 

diagnosed sprain of ligaments of the lumbar spine, initial encounter; fracture of unspecified part 

of the neck of the right femur, sequela; and history of non-work-related right hip replacement. 

Dr. Welborn noted that appellant’s physical examination was essentially normal except for right 

hip tenderness, and abnormal palpation-spinal tenderness and limited range of motion. He

indicated that appellant had subjective low back and right hip pain and objective findings of status 

post right hip bipolar replacement and degenerative findings in the lumbar spine based on a 

magnetic resonance imaging (MRI) scan. Dr. Welborn opined that her work-related lumbar sprain 
3

had resolved, and no further treatment was required. He noted that appellant’s continued low back 

pain was due to her preexisting lumbar degenerative condition. Dr. Welborn concluded that she 

could not perform her PSE clerk position, but she could work with restrictions due to right hip pain 

resulting from her nonwork-related right hip replacement surgery. In an accompanying work 

capacity evaluation (Form OWCP-5c) of even date, he reiterated his opinion regarding appellant’s

inability to perform her usual job, but noted that she could work eight hours per day with specific 

physical restrictions.

By notice dated August 24, 2021, OWCP advised appellant that it proposed to terminate

her wage-loss compensation and medical benefits based on Dr. Welborn’s opinion that the 

accepted condition had ceased without residuals and that she was not disabled from work due to 

the accepted condition. It afforded her 30 days to submit additional evidence or argument 

challenging the proposed action.

OWCP subsequently received additional primary treating physician’s progress reports 

dated June 15, 29, July 27, and August 24, 2021 and a letter and Form OWCP-5c dated July 7, 

2021 from Dr. Abeles. Dr. Abeles continued to diagnose the accepted condition of sprain of 

ligaments of the lumbar spine, initial encounter, as well as lumbar radiculopathy. He provided 

appellant’s work restrictions and recommended a functional capacity evaluation to determine her 

long-term work capacity. 

In a July 10, 2020 report, Dr. John Giddens, an internist, noted a history of the July 20, 

2020 employment injury and provided findings on his examination. He diagnosed the accepted 

condition of sprain of ligaments of the lumbar spine, initial encounter, active; and strain of muscle, 

fascia, and tendon of the lower back, initial encounter, active. Dr. Giddens noted that appellant 

was in severe pain and was off work.

In a July 10, 2020 report, Dr. Ronald Pritchard, a Board-certified diagnostic radiologist, 

reviewed x-rays of the lumbosacral spine and right hip and, noted no acute process was 

demonstrated.

OWCP received reports dated July 7 through August 11, 2021 from Acupuncturist 

Minzhan Gao. 

Dr. Jalal-Arman Daryale, a chiropractor, in reports dated July 19 through August 9, 2021,

addressed the treatment of appellant’s accepted condition of sprain of ligaments of lumbar spine, 

initial encounter, and diagnosed intervertebral disc disorders with radiculopathy, lumbar region; 

and presence of right artificial hip joint.

In a September 24, 2021 lumbar spine MRI scan report, Dr. Ravi Alagappan, a Boardcertified diagnostic radiologist, provided impressions of no significant change in lumbar 

spondylosis compared to the prior examination; reactive marrow edema in the posterior elements 

at L4-5 bilaterally, left greater than right compatible with stress response. 

By decision dated October 26, 2021, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective that date, finding that Dr. Welborn’s opinion was 

entitled to the weight of the medical evidence.
4

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, itmay not terminate compensation 

without establishing that the disability has ceased or that it is no longer related to the employment. 5 

OWCP’s 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.7 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

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 benefits and medical benefits, effective October 26, 2021, as she no longer had 

residuals or disability causally related to her accepted July 7, 2020 employment injury.

Dr. Welborn, the second opinion physician, in a July 12, 2021 report and Form OWCP-5c,

opined that appellant’s work-related lumbar sprain had resolved and no further treatment was 

required. He reasoned that an MRI scan study, as well as her essentially normal examination 

findings with the exception of right hip tenderness, abnormal palpation-spinal tenderness and 

limited range of motion, revealed no objective residuals of the accepted condition. Dr. Welborn

further explained that appellant’s continued low back pain was due to her preexisting lumbar 

degenerative condition. He concluded that she could not perform her PSE clerk position, but she 

could work with restrictions due to right hip pain resulting from her nonwork-related right hip 

replacement surgery. 

The Board finds that Dr. Welborn’s opinion represents the weight of the medical evidence 

in this case. Dr. Welborn provided a detailed medical report reviewing the medical record, 

unequivocally opined that appellant did not have residuals or disability from the accepted 

employment-related condition and supported his opinion with medical rationale (objective 

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

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

5

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

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

6 M.C., Docket No. 18-1374 (issued April23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

8 L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).
5

findings).

9

 Accordingly, OWCP properly relied on Dr. Welborn’s second opinion report in 

terminating appellant’s wage-loss compensation and medical benefits.10

Subsequent to Dr. Welborn’s evaluation, OWCP received continuing reports from

Dr. Abeles. In his July 27 and August 24, 2021 reports, Dr. Abeles diagnosed the accepted 

condition of sprain of ligaments of the lumbar spine, initial encounter, as well as lumbar 

radiculopathy, and he provided appellant’s work restrictions. However, he did not provide a wellreasoned explanation as to why she continued to have residuals due to the July 20, 2020 

employment injury. The Board has held that a medical report is of limited probative value on a 

given medical issue if it contains a medical opinion which is unsupported by medical rationale.11

Similarly, Dr. Giddens’ July 10, 2020 report did not provide a rationalized medical 

opinion. He diagnosed active lumbar spine sprain and strain of muscle, fascia, and tendon of the 

lower back, and noted that appellant was off work, but he did not explain why she continued to 

suffer from residuals and disability due to the accepted employment injury.12

The record also contains the reports dated July 7 through August 11, 2021 from

Dr. Daryale, a chiropractor, who diagnosed the accepted condition of sprain of ligaments of lumbar 

spine, initial encounter; intervertebral disc disorders with radiculopathy, lumbar region; and 

presence of right artificial hip joint. Dr. Daryale is only considered to be a qualified physician 

under FECA to the extent he diagnoses a subluxation demonstrated by x-ray.13 Consequently, he 

is not considered a physician under FECA and his opinions do not constitute probative medical 

evidence.14

9 B.T., Docket No. 19-1505 (issued April2, 2021); T.W.,Docket No. 18-1573 (issued July 19, 2019);A.G.,Docket 

No. 18-0749 (issued November 7, 2018).

10 See B.T., id.; T.C., Docket No. 19-1383 (issued March 27, 2020); K.W., Docket No. 19-1224 (issued 

November 15, 2019); see N.G., Docket No. 18-1340 (issued March 6, 2019); A.F.,Docket No. 16-0393 (issued 

June 24, 2016).

11 See D.V., Docket No. 19-0868 (issued March21, 2022); L.S., supra note 8; M.H., Docket No. 17-0210 (issued 

June 3, 2018).

12 Id.

13 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);DavidP. 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).

14 S.S., Docket No. 19-1516 (issued October 21, 2021); R.D., Docket No. 19-1528 (issued January 17, 2020); see 

Jay K. Tomokiyo, 51 ECAB 361 (2000).
6

OWCP also received reports from Acupuncturist Gao. These reports are of no probative 

value, however, because an acupuncturist is not considered a physician as defined by FECA.15

While the July 10, 2020 x-ray reports from Dr. Pritchard and September 24, 2021 lumbar 

MRI scan report from Dr. Alagappan revealed lumbosacral spine and right hip conditions, the 

Board has held that diagnostic studies, standing alone, lack probative value as they do not address 

whether the employment injury caused any of the diagnosed conditions. 16

As the evidence of record is insufficient to overcome the weight of the medical evidence 

accorded to Dr. Welborn, the Board finds that OWCP has met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits effective October 26, 2021.

LEGAL PRECEDENT -- ISSUE 2

When an employee claims that a condition not accepted or approved by OWCP was due to 

an employment injury, he or she bears the burden of proof to establish that the condition is causally 

related to the employment injury.17

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.18 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.19 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition, and 

appellant’s employment injury.20

ANALYSIS -- ISSUE 2

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

of her claim should be expanded to include intervertebral disc disorders with radiculopathy, and 

presence of right artificial hip joint. 

15 5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

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

by State law. See also DavidP. Sawchuk, supra note 13 (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA). 5 U.S.C. § 8101(2); 20 C.F.R. 

§ 10.5(t). George H. Clark, 56 ECAB 162 (2004) (physician assistant); JamesA. White, 34 ECAB 515, 518 (1983) 

(physical therapist); Nemat M. Amer,Docket No. 03-338 (issued April7, 2005) (acupuncturist).

16 Y.J., Docket No. 20-1123 (issued September 27, 2021); R.C.,Docket No. 19-0376 (issued July 15, 2019).

17 J.R., Docket No. 20-0292 (issued June26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); JajaK. 

Asaramo, 55 ECAB 200, 204 (2004).

18 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

19 F.A., Docket No. 20-1652 (issued May 21, 2021); M.V.,Docket No. 18-0884 (issued December 28, 2018);

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

20 Id.
7

Counsel requested expansion of the claim based upon the reports from Dr. Abeles. In a 

series of reports, Dr. Abeles related a history of appellant’s July 7, 2020 employment injury. He 

also noted her current complaint of back pain with sciatica into her right leg and pain in her right 

hip, as well as her findings on physical examination and diagnostic tests. Dr. Abeles diagnosed 

lumbar region intervertebral disc disorders with radiculopathy, and presence of right artificial hip 

joint. However, he did not provide an opinion on the cause of the diagnosed conditions. The 

Board has held that medical evidence offering no opinion regarding the cause of an employee’s 

condition is of no probative value on the issue of causal relationship. 21 AsDr. Abeles did not offer 

an opinion regarding the cause of appellant’s diagnosed conditions, his reports are of no probative 

value on the issue of causal relationship.

The Board finds that appellant has not submitted reasoned evidence supporting that she 

sustained additional conditions causally related to her accepted July 7, 2020 employment injury.

As such, appellant has not met her burden of proof.

22

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 benefits and medical benefits, effective October 26, 2021, as she no longer had 

residuals or disability causally related to her accepted July 7, 2020 employment injury. The Board 

also finds that appellant has not met her burden of proof to establish that acceptance of her claim 

should be expanded to include intervertebral disc disorders with radiculopathy, and presence of 

right artificial hip joint. 

21 See R.G., Docket No. 18-0792 (issued March 11, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018);

D.K., Docket No. 17-1549 (issued July 6, 2018).

22 G.M., Docket No. 19-0933 (issued October 1, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the October 26, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 4, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board