United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.F., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER/FACILITY, 

Bellmawr, NJ, Employer

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Docket No. 21-0381

Issued: May 23, 2022

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 19, 2021 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.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 August26, 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 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to expand the acceptance of his 

claim to include the additional conditions as causally related to the accepted November 17, 2006

employment injury.

FACTUAL HISTORY

On November 27, 2006 appellant, then a 53-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on November 17, 2006 he sustained an injury to his left leg when

loading his truck while in the performance of duty. On April 23, 2007 OWCP accepted the claim 

for aggravation of preexisting sciatica. Appellant underwent OWCP-authorized anterior lumbar 

interbody fusion with allograft and autograft L3-4, L4-5, and L5-S1, complete discectomy L3-4, 

L4-5, and L5-S1, C-arm fluoroscopic guidance, intraoperative neuromonitoring, insertion of 

PEEK implant L3-4, L4-5, and L5-S1, application of plate and screws anteriorly L3-4, L4-5, and 

L5-S1, bone marrow aspirate left anterior and iliac crest, placement of Vancomycin powder, 

Foraminotomies bilateral L3-4, L4-5, and L5-S1, and intraoperative neuromonitoring on 

October 5, 2012. OWCP paid him wage-loss compensationon the supplemental rolls commencing 

August 31, 2012 and on the periodic compensation rolls as of March 10, 2013. 

In a progress report dated April 12, 2018, appellant’s treating physician, Dr. Steven 

Valentino, an osteopath and a Board-certified orthopedic surgeon, diagnosed unspecified thoracic, 

thoracolumbar and lumbosacral intervertebral disc disorder, lumbar facet joint syndrome, lumbar 

degenerative joint disease (DJD), and lumbar spondylosis without myelopathy or radiculopathy. 

Dr. Valentino opined that appellant’s “ongoing symptoms and need for treatment are causally 

related to [appellant’s] work injury.” 

In a January 15, 2020 attending physician’s report (Form CA-20), Dr. Guy Fried, an 

osteopath and a Board-certified physiatrist, diagnosed appellant with intervertebral disc disorders,

which he opined, with a checkmark “Yes,” was caused or aggravated by an employment injury. 

On January 15, 2020 OWCP referred appellant for a second opinion examination, along 

with a statement of accepted facts (SOAF), a set of questions and,the medical record to Dr. Stanley 

Askin, a Board-certified orthopedic surgeon, to determine if appellant had on going disability and 

need for medical care due to the November 17, 2006 employment injury. The SOAF noted 

appellant’s October 5, 2012 surgical procedure, but did not indicate that the procedure had been 

authorized. 

In a February 28, 2020 report, Dr. Askin noted appellant’s history of injury and medical 

treatment, and indicated that he had reviewed the SOAF. He noted that he last saw appellant on 

August 16, 2013 and, at that time, thought continuing work restrictions were appropriate and 

should be revisited in one year’s time. Dr. Askin noted that appellant had indicated on 

November 17, 2018 that he was the driver of a motor vehicle that hit a pole and denied any injury 

resulting from that occurrence. He also noted that appellant receivedinjections from Dr. Valentino 

and that Dr. Fried prescribed medication. Dr. Askin noted that appellant had presented with a 

cane. He indicated that appellant had a normal examination with negative straight leg raising tests

and negative Patrick’s, Spurlings’, Phalen’s, Tinel’s, and Finkelstein tests. Dr. Askin also 

indicated that there was no anatomic explanation for appellant’s report of back pain when appellant

moved his neck in flexion, extension, or rotation to each side fully. He reported that appellant was 
3

neuromuscularly intact with no neurologic deficit for either upper or lower extremities. Dr. Askin

diagnosed status postsurgical treatment for intervertebral disc disease and found that the only

objective findings were surgical changes associated with the October 5, 2012 surgical procedure.

He indicated that appellant’s accepted condition of aggravation of preexisting sciatica had resolved 

as there was no evidence of sciatica. Dr. Askin opined that appellant could return to his date-ofinjury job without restrictions as there was no objectively determinable lingering effect of the 

accepted injury and that there was no recent demonstration that any acute or serious condition that 

would justify continued medical treatment. 

On March 17, 2020 OWCP requested that Dr. Askin provide a supplemental report

pertaining to continued medical treatment and expansion of the claim for any of the conditions of 

unspecified thoracic, thoracolumbar and lumbosacral intervertebral disc disorder, lumbar facet 

joint syndrome, lumbar DJD, and lumbar spondylosis without myelopathy or radiculopathy. 

In a March 20, 2020 supplemental report, Dr. Askin related that appellant was not suffering 

from any such conditions as a consequence of any factor of employment. He concluded that such 

conditions were not listed as “accepted” by OWCP and that he was not provided with any 

documentation or clinical evaluation reason why such diagnoses should be accepted as 

consequential to the factors of employment. Dr. Askin explained that every person who was no 

longer young developed (spondylosis) and/or degenerative disc disease and/or facet syndrome, not 

as consequences of factors of employment, but because that was a ubiquitous consequence of 

getting older. He indicated that, to the extent appellant has such conditions, it is an age-appropriate 

degenerative change. Dr. Askin explained that on examination appellant did not have any ongoing 

disturbance of these baseline age-related/degenerative conditions that was consequential to 

appellant’s factors of employment. 

By decision dated March 25, 2020, OWCP denied the expansion of the acceptance of his 

claim to include the additional diagnoses of unspecified thoracic, thoracolumbar and lumbosacral 

intervertebral disc disorder, lumbar facet joint syndrome, lumbar DJD, and lumbar spondylosis 

without myelopathy or radiculopathy. It gave the weight of the medical evidence to Dr. Askin’s 

February 28 and March 20, 2020 opinions. OWCP also noted that Dr. Valentino offered no 

medically-supported rationale as to how the November 17, 2006 employment injury caused or 

aggravated any of the diagnosed conditions. 

On March 30, 2020 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. 

In an April 21, 2020 addendum report, Dr. Askin indicated that appellant does not have a 

chronic pain syndrome, rather, he chronically complains of pain for which there is no physical 

basis and for which there is no need for continuing medical treatment. He opined that appellant’s 

current clinical condition does not justify a prescription of any opioid medication for his accepted 

condition and there is no work-related or nonwork-related condition that requires any pain 

management. 
4

On July 16, 2020 a telephonic hearing was held.4 By decision dated August 26, 2020, an 

OWCP hearing representative affirmed the March 25, 2020 decision. 

LEGAL PRECEDENT

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.5

To establish causal relationship, the employee must submit rationalized medical opinion 

evidence.6 The opinion of the physician must be based on a complete factual and medical 

background of the claimant, must be one of reasonable medical certainty, and must be supported 

by medical rationale explaining the nature of the relationship between the diagnosed condition and 

the accepted employment injury.7 The weight of medical evidence is determined by its reliability, 

its probative value, its convincing quality, the care of analysis manifested, and the medical 

rationale expressed in support of the physician’s opinion.8

ANALYSIS

The Board finds that this case is not in posture for decision.

OWCP accepted that appellant sustained an aggravation of his preexisting sciatica as a 

result of the November 17, 2006 employment injury. It also accepted a recurrence of disability 

due to an October 5, 2012 OWCP surgical procedure for anterior lumbar interbody fusion with 

allograft and autograft L3-4, L4-5, and L5-S1, complete discectomy L3-4, L4-5, and L5-S1,C-arm 

fluoroscopic guidance, intraoperative neuromonitoring, insertion of PEEK implant L3-4, L4-5, and 

L5-S1, application of plate and screws anteriorly L3-4, L4-5, and L5-S1, bone marrow aspirate 

left anterior and iliac crest, placement of Vancomycin powder, foraminotomies bilateral L3-4, 

L4-5, and L5-S1, and intraoperative neuromonitoring. However, OWCP denied expansion of the 

acceptance of the claim to include the conditions of unspecified thoracic, thoracolumbar and 

lumbosacral intervertebral disc disorder, lumbar facet joint syndrome, degenerative joint disease 

of the lumbar spine, and spondylosis of the lumbar region without myelopathy or radiculopathy, 

finding that the weight of the medical evidence rested with the opinion of Dr. Askin, serving as 

the second opinion physician. 

4 By decision dated June 2, 2020, OWCP terminated appellant’s medical and wage-loss compensation benefits,

effective June 3, 2020, based on Dr.Askin’s second opinion reports. By decision dated October 30, 2020, an OWCP 

hearing representative reversed the termination decision, finding that Dr.Askin’s reports were not well-rationalized 

or based on an accurate SOAF. 

5 D.T., Docket No. 20-0234 (issued January 8, 2021);see T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., 

Docket No. 17-0645 (issued August15, 2018); JajaK. Asaramo, 55 ECAB 200 (2004).

6 D.T., id.; T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); JohnD. Jackson, 55 

ECAB 465 (2004).

7 D.S., Docket No. 18-0353 (issued February 18, 2020);T.K., id.; I.J., 59 ECAB 408 (2008);Victor J. Woodhams, 

41 ECAB 345 (1989).

8

Id.
5

In his February 28, 2020 report, Dr. Askin diagnosed status postsurgical treatment for 

intervertebral disc disease and found that the only objective findings were surgical changes 

associated with the October 5, 2012 surgical procedure. He opined that appellant’s accepted 

condition of aggravation to preexisting condition of sciatica had resolved as there was no evidence 

of sciatica. While Dr. Askin opined in his February 28 and March 20, 2020 reports that appellant 

did not have any ongoing disturbance of the baseline age-related/degenerative conditions that was 

consequential to his factors of employment, the Board finds that OWCP provided Dr. Askin a 

deficient SOAF, which failed to clearly indicate that OWCP had authorized the October 5, 2012 

surgical procedure and accepted a recurrence of disability as a result. This information is relevant 

to the issue of the expansion claim for the requested conditions. It is well established that a 

physician’s opinion must be based on a complete and accurate factual and medical background. 

When OWCP has accepted an employment condition or a surgical procedure, the physician must 

base his opinion on those accepted conditions.9 

OWCP procedures and Board precedent 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.10

As noted, in his February 28, 2020 report, Dr. Askin diagnosed status postsurgical 

treatment for intervertebral disc disease and found objective surgical changes associated with the 

October 5, 2012 surgical procedure. As he did not rely on an accurate SOAF regarding the 

accepted conditions, the Board finds that his report and opinion pertaining to claim expansion of 

the requested conditions to be of diminished probative value.11

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done.12 Once it undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case. 13 As Dr. Askin did 

not base his report on an accurate factual history, the case will be remanded to OWCP for f urther 

development of the medical evidence.

On remand OWCP shall refer appellant, a SOAF, and list of questions to a new second 

opinion physician in the appropriate field of medicine for a rationalized medical opinion on the 

9 G.B., Docket No. 20-0750 (issued October 27, 2020); V.S., Docket No. 19-1792 (issued August4, 2020); T.P., 58 

ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).

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

(October 1990). See also D.C., Docket No. 21-0780 (issued December 22, 2021); D.E., Docket No. 17-1794 (issued 

April 13, 2018); K.V., Docket No. 15-0960(issued March9, 2016); Paul King, 54 ECAB 356 (2003).

11 Id.

12 K.R., Docket No. 21-0083 (issued June 3, 2021); C.R., Docket No. 20-1102 (issued January 8, 2021); K.P.,

Docket No. 18-0041 (issued May 24, 2019).

13 K.R., id.; see F.K., Docket No. 19-1804 (issued April27, 2020); B.W., Docket No. 19-0965 (issued 

December 3, 2019). 
6

expansion issue. Following this and other such further development as deemed necessary, OWCP 

shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

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

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: May 23, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board