United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Fort Lauderdale, FL, 

Employer

__________________________________________

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Docket No. 20-1274

Issued: September 28, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 June 17, 2020 appellant, through counsel, filed a timely appeal from a May 7, 2020 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

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

ISSUES

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

wage-loss compensation and medical benefits, effective August 20, 2017, as she no longer had 

disability or residuals causally related to her accepted March 17, 2005 employment injury; and 

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

or after August 20, 2017, due to the accepted March 17, 2005 employment injury.

FACTUAL HISTORY

On March 20, 2005 appellant, then a 43-year-old transportation security screener, filed a 

traumatic injury claim (Form CA-1) alleging that on March 17, 2005 she sustained injury to her 

back while standing and writing, and while lifting baggage in the performance of duty. She

stopped work on March 20, 2005. OWCP accepted appellant’s claim for lumbar strain, displaced 

lumbar disc at L1-L2, L5-S1, degeneration of lumbosacral disc L1-L2 and L5-S1, and lumbosacral 

radiculitis. It paid her wage-loss compensation on the supplemental rolls beginning June 4, 2013

and on the periodic rolls as of March 9, 2014.

In a November 19, 2016 report, Dr. Alicia Chilito, a Board-certified family practitioner, 

noted that appellant had lumbar herniated discs, which originally occurred during an injury in 

2005. She indicated that appellant had undergone several procedures including implantation of an

electronic pain stimulator to no avail. Dr. Chilito advised that appellant continued to receive 

treatment with a goal of enabling appellant to perform her activities of daily living, without being 

dependent on opiate-type medications. She opined that appellant was totally and permanently 

disabled from performing any gainful occupation.

On December 13, 2016 OWCP referred appellant to Dr. Clinton G. Bush, III, a Boardcertified orthopedic surgeon, for a second opinion examination to determine the status of 

appellant’s accepted conditions and the extent of her disability.

In December 30, 2016 report, Dr. Bush noted appellant’s history of injury and medical

treatment, and his review of the statement of accepted facts (SOAF). He examined appellant and 

provided findings, which included full range of motion of the cervical spine, thoracolumbar spine ,

and extremities, no muscle atrophy, and no neurological deficits. Dr. Bush diagnosed degenerative 

disc disease of the lumbosacral spine and upper lumbar strain, resolved. He advised that there was 

no evidence of a traumatic event, which would correlate with a lumbosacral disc injury. Dr. Bush 

related that appellant indicated that she “was moving pieces of luggage” “but had no symptoms 

whatsoever until she lifted an extremely light weight object -- a piece of paper -- and felt a sudden 

twinge in her back in the region of the thoracolumbar junction, and this was without any associated 

 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the May 7, 2020 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 evidence for 

the first time on appeal. Id.
3

radicular symptomatology. Nine days later, she had a magnetic resonance imaging scan (MRI)

scan, which showed evidence of disc herniation at two levels as well as a minor disc bulging at 

L5/S1.” Dr. Bush explained that disc bulging and disc desiccation were signs of degenerative 

disease, which would be expected in a 45-year-old. He noted that sensation of pain at the 

thoracolumbar junction did not correlate with a disc abnormality at L5-S1 and that disc desiccation 

was not a sign of trauma, but was instead a pathognomonic sign of disc degeneration. Dr. Bush 

also noted that appellant’s symptoms were not causally related simply because she had the 

complaints when she left work on March 17, 2005, but claimed not to have had any such 

complaints prior to arriving at work. He opined that “[i]n view of [appellant’s] own description 

of her activities at work on that date, I find no reasonable or logical causal connection, and post

hoc arguments propounded by [appellant’s] pain doctor are simply not compelling.” Dr. Bush also 

opined that the initial diagnosis of lumbar strain was correct, and had resolved. He further opined 

that the accepted diagnosis of degenerative disc disease of the lumbosacral spine was correct. 

Dr. Bush indicated that, within a reasonable degree of medical certainty, there was no credible 

evidence of a disc injury at either L1-L2 or at L5-S1. He further advised that, with reasonable 

medical certainty, any current evidence of lumbosacral radiculopathy would be due to the 

progression of the degenerative disc disease. Dr. Bush noted that appellant’s complaints were 

subjective and there was very little in the way of objective findings. He explained that the 

September 17, 2013 electrodiagnostic studies suggested possible mild right L5 radiculopathy, but 

this did not correlate with appellant’s subjective symptoms, which would correlate best with an L3 

dermatome distribution. Dr. Bush advised that appellant was restricted from the full physical 

requirements of her job, especially the 70-pound lifting requirement, but he opined that this 

restriction was not causally related to the March 17, 2005 injury. He advised that appellant had 

chronic pain issues, which were not related to her employment activities and that she had reached 

maximum medical improvement (MMI). Dr. Bush completed a work capacity evaluation (Form 

OWCP-5c) and noted that appellant could return to work with restrictions.

On July 12, 2017 OWCP advised appellant of its proposed termination of her wage-loss 

compensation and medical benefits based on Dr. Bush’s report that she had no further 

employment-related residuals or disability due to her March 17, 2005 employment injury. It 

afforded her 30 days to submit additional evidence or argument if she disagreed with the proposed 

termination.

OWCP received a February 21, 2017 report from Dr. James Caviness, Board-certified in 

occupational medicine, who reviewed the report from Dr. Bush as a medical review physician for 

the employing establishment’s workers’ compensation case management program. Dr. Caviness

advised that Dr. Bush was thorough and offered clear and compelling medical evidence that 

appellant had subjective complaints far in excess of any objective findings and there was no 

residual impairment related to the work injury. He found that appellant was at MMI and was 

capable of work, although not at her preinjury level.

In a July 26, 2017 report, Dr. Christopher G. Vendryes, a pain management specialist,

noted that appellant was suffering from a chronic painful condition, post work-related injury on

March 17, 2005. He disagreed with Dr. Bush and explained that incidents leading to herniation 

“need not be a severe traumatic injury it is well documented sneezing can cause herniation of the 

lumbar sacral disc. Lifting suitcases which is part of [appellant’s] job especially on a repetitive 

basis has been known to cause herniation. Surely [appellant] did not claim lifting a piece of paper 

caused her herniation.” Dr. Vendryes also explained that disc herniation was “indeed a sign and 

may be part and parcel of degenerative disc disease but disc bulging however can and has been 
4

seen to occur separately from disc degeneration. It can also be argued that her job[-] related injury 

caused the disc bulges superimposed on her degenerative disc disease.” Dr. Vendryes further 

related that the size of the disc bulge/herniation did not necessarily correlate with pain or the 

intensity, “The herniation/bulge may be small but in the right location so as to impact on the nerve 

root, it will cause radicular symptoms.” He indicated that he believed that Dr. Bush had also seen 

on MRI scans large herniation in the face of minimal or no radicular pain, likewise a very clean 

MRI scan in patients with radicular pains. Dr. Vendryes opined that appellant’s lumbar condition 

culminated in her present state and that there was a causal relationship to the initial work injury.

In a letter dated August 7, 2017, counsel argued that Dr. Bush did not accept that the 

findings in OWCP’s SOAF, including that appellant had a traumatic injury and that the accepted 

conditions included displacement of the lumbar intervertebral disc, as well degeneration of the 

lumbosacral disc at L1-2, and L5-S1.

By decision dated August 17, 2017, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective August 20, 2017. It found that the weight of the 

medical evidence rested with the opinion of Dr. Bush, the second opinion physician, and 

established that appellant had no further disability or residuals due to her accepted employment 

injury.

In an August 7, 2017 report, Dr. Vendryes examined appellant and diagnosed degeneration 

of the lumbar or lumbosacral intervertebral disc, spondylosis lumbar spine, thoracic or lumbosacral 

neuritis or radiculitis, unspecified, and sacroiliitis. In a November 30, 2017 report, he disagreed 

with the termination of appellant’s compensation benefits. Dr. Vendryes repeated his explanation 

from his July 26, 2017 report that incidents leading to herniation need not be severe. He noted that 

the MRI scan report of March 26, 2005, eight days after the work injury, revealed displaced 

bulging disc at L5-S1, the MRI scan report of October 2, 2006 revealed posterolisthesis of L5-S1 

with displaced bulging disc, and an MRI scan report of June 5, 2012 included an L5-S1 disc 

bulging eccentric to the left with facet arthrosis. Dr. Vendryes repeated his opinion that appellant’s

lumbar condition culminated in her present state and there was a causal relationship to the initial 

work injury. He opined that it was surprising that Dr. Bush could categorically state that none of 

appellant’s current/ongoing symptoms were related to the accepted injury.

On August 25, 2017 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review, which was held on February 13, 2018.

By decision dated May 14, 2018,4the OWCP hearing representative affirmed OWCP’s

termination of appellant’s wage-loss compensation and medical benefits, effective 

August 20, 2017. However, the hearing representative found that a conflict in medical opinion 

evidence was created with regard to whether appellant had continuing disability on or after 

August 20, 2017, as Dr. Vendryes had provided a November 30, 2017 rationalized opinion 

disagreeing with Dr. Bush’s opinion.

On July 17, 2018 OWCP determined that a conflict in evidence arose regarding whether 

appellant had continuing disability and residuals from the accepted employment injury. OWCP 

 

4 The May 14, 2018 decision superseded an April 27, 2018 decision in which the OWCP hearing representative 

determined that the August 17, 2017 decision was affirmed in part and remanded it part.
5

referred appellant to Dr. Alan Crystal, a Board-certified orthopedic surgeon, to serve as an 

impartial medical examiner (IME).

In an August 13, 2018 report, Dr. Crystal noted appellant’s history of injury and medical

treatment, and the SOAF. He examined appellant and noted that he found no objective clinical 

findings. Dr. Crystal explained that appellant claimed decreased sensation, but this was negated 

by her claim of decreased vibratory sensation. He noted that her motor examination was normal 

and she had normal reflexes without any atrophy. Dr. Crystal explained that appellant did not have 

any residuals of disc degeneration because she did not have any objective clinical findings that 

would correlate with nerve root impingement. He advised that “disc degeneration is a degenerative 

process, not a traumatic process. It is my opinion that the ‘degeneration of lumbar or lumbosacral 

intervertebral disc’ is not related to the work injury and has resolved.” Dr. Crystal explained that 

“[o]nce a disc begins its degeneration, discs can displace with little or no pressure on them. It is 

speculative that ‘[d]isplacement of lumbar intervertebral disc’ causes back pain, unless a 

discectomy is performed and the procedure resolved the back pain.” Dr. Crystal noted that 

appellant had generalized spine degeneration which was a competent source of back pain and that 

it was “extremely difficult to identify the exact spine structure which is causing a patient’s back 

pain. That is why spine procedures often fail to alleviate pain. Hence the accepted condition has 

resolved.” He opined that appellant did not have any residuals of the accepted conditions of 

sciatica and sprain of the back lumbar region, because she did not have any objective clinical 

findings and the accepted conditions had resolved.

By decision dated October 29, 2018, OWCP again found that appellant had not established 

continuing disability or residuals on or after August 20, 2017. It found that the opinion of

Dr. Crystal, the IME, represented the special weight of the evidence.

On November 5, 2018, appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review, which was held on March 11, 2019.

By decision dated May 28, 2019, the hearing representative set aside the October 29, 2018

decision, finding that Dr. Crystal’s report was insufficiently rationalized. The hearing 

representative remanded the case for a supplemental report.

In a letter dated June 18, 2019, requested that Dr. Crystal provide clarification regarding 

whether appellant continued to have disability or residuals on or after August 20, 2017, causally 

related to her accepted conditions. OWCP also requested that Dr. Crystal review the report of

Dr. Vendryes and discuss his findings.

In an addendum report dated July 22, 2019, Dr. Crystal explained that he had reviewed the 

medical evidence and opined that appellant was “not suffering from the accepted conditions of 

degeneration of lumbar or lumbosacral disc.” He explained that the MRI scan performed nine 

days after the March 17, 2005 employment injury did not show any lumbar degeneration. 

Dr. Crystal noted that the MRI from October 2, 2006 showed lumbar degeneration; however, this 

was not due to injury, but rather, was secondary to progressive disc degeneration. He further noted 

that for almost four months after the date of the injury there were no objective findings. Dr. Crystal

advised that a discogram could have been performed to prove that the disc degeneration was the 

source of appellant’s back pain, however, it was not performed and the etiology of her back pain 

was only surmised and not conclusive. He opined that it was improbable that radiculopathy could 

occur with a clean MRI.
6

By de novo decision dated October 21, 2019, OWCP found that appellant had not 

established continuing disability or residuals on or after August 20, 2017, based on Dr. Crystal’s 

opinion.

On October 31, 2019, appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings & Review, which was held on February 28, 2020.

By decision dated May 7, 2020, the hearing representative affirmed the October 21, 2019 

decision, finding that Dr. Crystal resolved the conflict between the opinions of Dr. Bush, the 

second opinion physician, and Dr. Vendryes, appellant’s treating physician and, therefore, 

constituted the special weight of the medical evidence.

LEGAL PRECEDENT -- ISSUE 1

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

modification or termination 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 Its 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.8 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.9

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 August 20, 2017.

OWCP accepted appellant’s claim for lumbar strain, displaced lumbar disc at L1-L2, L5-

S1, degeneration of lumbosacral disc L2-L2 and L5-S1, and lumbosacral radiculitis. It referred 

appellant to Dr. Bush for a second opinion evaluation to determine whether appellant’s accepted 

 

5 D.G., Docket No. 20-1037 (issued December 15, 2020); R.H., Docket No. 19-1604 (issued October 9, 2020); S.F., 

59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6 C.R., Docket No. 19-1132 (issued October 1, 2020); I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 

734 (2003).

7 E.K., Docket No. 18-0835 (issued September 23, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018); 

Del K. Rykert, 40 ECAB 294-96 (1988).

8 M.P., Docket No. 20-0024 (issued September 1, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019); 

Furman G. Peake, 41 ECAB 361, 364 (1990).

9 D.B., Docket No. 19-0663 (issued August27, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019); 

CalvinS. Mays, 39 ECAB 993 (1988).
7

conditions had resolved. OWCP provided Dr. Bush a SOAF which accurately reflected the 

accepted conditions in this case.10

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.11

In his December 30, 2016 report, Dr. Bush explained that disc bulging and disc desiccation 

were signs of degenerative disease which would be expected in a 45-year-old and were most 

certainly not a sign of trauma but is instead a pathognomonic sign of disc degeneration. He also 

opined that appellant’s initial diagnosis of lumbar strain was correct, and had resolved. Dr. Bush

further opined that the accepted diagnosis of degenerative disc disease of the lumbosacral spine 

was correct. However, he concluded that there was no credible evidence of a disc injury at either 

L1-L2 or at L5-S1. In so far as Dr. Bush concluded that appellant had no credible evidence of a 

disc injury at L1-L2 and L5-S1 caused by the accepted traumatic injury, his opinion was not based 

upon the SOAF and is therefore of no probative value.12 

As the report from Dr. Bush is of no probative value, OWCP did not meet its burden of 

proof to terminate appellant’s wage-loss compensation and medical benefits.

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 20, 2017.

13

 

10 J.N., Docket No. 19-0215 (issued July 15, 2019); KathrynE. Demarsh, 56 ECAB 677 (2005).

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

(October 1990); G.B., Docket No. 16-0996 (issued September 14, 2016). 

12 Id.

13 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
8

ORDER

IT IS HEREBY ORDERED THAT the May 7, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: September 28, 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