United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.C., Appellant

and

U.S. POSTAL SERVICE, MAHWAH CARRIER 

ANNEX, Mahwah, NJ, Employer

__________________________________________

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Docket No. 22-1320

Issued: July 11, 2023

Appearances: Case Submitted on the Record

Bruce H. Didriksen, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 1, 2022 appellant filed a timely appeal from a May 11, 2022 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 May11, 2022decision, appellant submitted additional evidence to OWCP. 

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 wageloss compensation and medical benefits, effective May 11, 2022, as he no longer had disability 

or residuals causally related to his accepted November 21, 2001 employment injury.

FACTUAL HISTORY

On November 24, 2001 appellant, then 52-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained an upper back, neck, chest, shoulder, and arm

injury when lifting a bucket of mail while in the performance of duty. OWCP assigned the claim 

OWCP File No. xxxxxx288 and accepted it for cervical strain.4 Appellant stopped work on 

November 23, 2001 and worked intermittently thereafter. It paid him wage-loss compensation 

benefits on the supplemental rolls, effective May 7, 2002, and on the periodic rolls, effective

December 29, 2002.

On August 14, 2017 and August 17, 2018 Dr. Brian A. Cole, a Board-certified 

orthopedist, treated appellant for work-related cervical spondylosis, lumbar spine stenosis, and 

grade 2 spondylolisthesis. He continued to have low back pain, difficulty lifting, bending, 

twisting, and occasional give-way of his legs. Dr. Cole diagnosed spondylolisthesis of the 

lumbar region caused by his work-related injury and cervical spondylosis. He noted that 

appellant continued to demonstrate degeneration and deformity as a result of the 

spondylolisthesis as seen on his x-rays with active back pain and intermittent leg pain. Dr. Cole 

opined that appellant’s work-related conditions had not resolved and he was unable to return to 

work without restrictions.

In an August 6, 2020 letter, OWCP requested that Dr. Cole provide an opinion as to 

whether appellant had any continuing disability or continuing residuals resulting from his 

November 21, 2001 employment injury. It afforded him 30 days to respond.

On August 17, 2020 Dr. Cole treated appellant for bilateral hip, low back, and coccyx 

pain, which began after a work injury in November 2001. He diagnosed spondylolisthesis, 

lumbar region.

In a September 30, 2020 report, Dr. Cole advised that appellant’s symptoms started after 

the November 2001 employment injury causing his spine to be unstable. He opined that 

appellant’s condition was permanent and he was unable to function in any manual job, which 

entailed sitting, standing, twisting, walking, or lifting for any period of time. In a work capacity 

evaluation (Form OWCP-5c) dated September 30, 2020, Dr. Cole diagnosed grade 1 

spondylolisthesis L5-S1 and noted that appellant reached maximum medical improvement 

(MMI) and was permanently disabled from work.

4 Appellant has a prior claim for an October 1, 1996 traumatic injury, when he was lifting trays of flats and 

injured his low back while in the performance of duty. OWCP assigned that claim OWCP File No. xxxxxx675 and 

accepted it for lumbosacral sprain and aggravation of L5-S1 spondylolistheses. It has administratively combined 

OWCP File Nos. xxxxxx675 and xxxxxx288, with the latter designated as the master file.
3

On October 6, 2020 Dr. Cole related that appellant was involved in a work-related 

accident on November 21, 2001 and was permanently disabled. He noted two injury claims 

relating to a lumbar spine and cervical spine. Dr. Cole explained that appellant’s condition 

progressed since the injury onset and he developed grade 1 spondylolisthesis at L5 -S1, which 

caused his spine to be unstable. He noted that appellant experienced episodic flare-ups of pain,

which incapacitated him for 9 to 10 days at a time. Dr. Cole requested expansion of appellant’s 

claim to include spondylosis without myelopathy or radiculopathy, cervical region; spinal 

stenosis, cervical region; and spondylolisthesis lumbar region, lumbar spine.5

A magnetic resonance imaging (MRI) scan of the cervical spine dated November 16, 

2020, revealed posterior disc herniation at C2-C3, C3-C4, C4-C5, C5-C6, C6-C7, anterolisthesis 

with posterior aspect of C2 on C3 and C6-C7, retrolisthesis with posterior aspect of C3 on C4, 

and reversal or normal lordotic curvature of the cervical spine. An MRI scan of the lumbar spine 

of even date revealed posterior disc herniation at L3-L4 with associated annular tear, posterior 

disc herniation at L1-L2, L2-L3, and T12-L1, grade 1 retrolisthesis with the posterior aspect of 

L1 on L2 and L4-L5, grade 2 anterolisthesis with posterior aspect of L5 on S1 and straightening 

of the normal lordotic curvature of the lumbar spine.

On December 16, 2020 Dr. Cole treated appellant for bilateral hip, low back, and coccyx 

pain related to his November 2001 employment injury. He indicated that his spinal problem was 

unchanged. Dr. Cole noted findings on examination of the lumbar spine of paraspinal tenderness 

bilaterally, decreased range of motion, and positive straight and crossed leg raise for back pain 

bilaterally. He diagnosed spondylolisthesis of the lumbar region.

OWCP referred appellant, along with the case record, a statement of accepted facts

(SOAF), and a series of questions to Dr. Daniel S. Rosenberg, a Board-certified physiatrist, for a 

second opinion examination. 

In a March 2, 2021 report, Dr. Rosenberg related appellant’s complaints of stiff neck, 

weakness in his arms and legs, paresthesia in both lower extremities, and urinary stress 

incontinence. He diagnosed cervical strain, lumbosacral strain, and aggravation of S1 

spondylolisthesis, temporarily aggravated by the work-related injury on November 21, 2001. 

Findings on physical examination revealed strength in both upper and lower ex tremities was 

4+/5 secondary to decreased volitional effort, limited range of motion of the lumbar and cervical 

spine, tenderness in the mid-cervical paraspinal region, accentuated upper thoracic kyphosis, 

tenderness in the lower thoracic and mid and upper lumbar paraspinal regions, and decreased 

lumbar lordosis. Dr. Rosenberg noted that appellant did not have residuals of the November 21, 

2001 employment injury and opined that the present symptomology was secondary to preexisting 

pathology including chronic cervical and lumbar spondyloarthropathy and congenital L5-S1 

spondylolisthesis. He noted strain/sprain type injuries were amendable to conservative treatment 

for up to eight weeks and should have resolved long before this date. Dr. Rosenberg advised that 

appellant was not capable of returning to his prior job as a letter carrier but should be able to 

5 On September 1, 2015, June 30, 2016, and October 11, 2019Dr.Cole treated appellant in follow up for workrelated cervical spondylosis, lumbar spine stenosis, and grade 2 spondylolisthesis. He diagnosed lumbar spine 

spondylolisthesis, cervical arthritis/spondylosis, chronic pain syndrome, cervical stenosis and opined that appellant 

remained totally disabled as a result of his employment injury.
4

work full duty, eight hours a day, in a sedentary capacity. He noted that appellant reached MMI 

and required no additional diagnostic testing. In response to the questions of whether the 

accepted condition of cervical strain, lumbosacral sprain and aggravation of L5 -S1 

spondylolisthesis resolved or reached preinjury status, Dr. Rosenberg referred to his prior 

findings contained in his report. In a Form OWCP-5c, he noted that appellant could return to 

full-time sedentary-duty work.

On March 19, 2021 OWCP requested a clarification report from Dr. Rosenberg. 

In a March 29, 2021 addendum report, Dr. Rosenberg noted that the work restrictions 

provided on the Form OWCP-5c dated March 2, 2021, were secondary to the preexisting cervical 

and lumbar spondyloarthropathy, congenital L5-S1 spondylolisthesis, and chronic obstructive 

pulmonary disease (COPD) and were not based on the accepted employment-related conditions. 

He indicated that based on the review of records and evaluation of appellant there were no 

objective findings to support the continued presence of cervical strain, lumbosacral sprain, and 

aggravation of L5-S1 spondylolisthesis. Dr. Rosenberg indicated that appellant had preexisting 

cervical and lumbar spondyloarthropathy and congenital L5-S1 spondylolisthesis, which was 

temporarily exacerbated by the November 21, 2001 employment injury. He reiterated that his 

symptomology and treatment should have resolved long before this date. Dr. Rosenberg noted 

that appellant’s current inability to perform his prior job function was secondary to preexisting 

cervical and lumbar spondyloarthropathy, congenital L5-S1 spondylolisthesis, and COPD.

On April 30, 2021 OWCP provided appellant with a copy of the SOAF, list of accepted 

definitions, and Dr. Rosenberg’s reports and requested that he obtain a well-rationalized report 

from his treating physician addressing whether he agreed with the findings and opinions of

Dr. Rosenberg with regard to appellant’s residuals and work abilities.

In reports dated May 5 and August 27, 2021, Dr. Cole noted that appellant sustained a 

work injury on November 21, 2001 that was accepted for aggravation of lumbar 

spondylolisthesis at L5-S1. He indicated that at that time appellant declined surgery and since 

there has been no significant change in his medical condition. Dr. Cole reviewed the reports 

from Dr. Rosenberg. He treated appellant for aggravation of L5-S1 spondylolisthesis and opined 

that appellant’s condition reached MMI. Dr. Cole advised that appellant could not return to his 

letter carrier position but was capable of sedentary work. In a report dated August 25, 2021, he

evaluated appellant for worsening symptoms. Appellant reported his pain was 10/10 with no 

change in the character or location of the condition. Dr. Cole noted marked worsening of his 

condition since January with complaints of pain when walking and numbness in both feet. 

Appellant indicated that he was unable to walk for short distances without pain. He noted 

paraspinal tenderness bilaterally, decreased range of motion for lumbar spine, and positive 

straight leg raises and crossed straight leg raises for back pain bilaterally. Dr. Cole diagnosed 

spondylolisthesis of the lumbar region. In an August 27, 2021 attending physician’s report 

(Form CA-20), he indicated that appellant was injured at work on November 21, 2001. Dr. Cole

diagnosed degenerative spondylolisthesis at L5-S1 and checked a box marked “Yes” indicating 

that appellant’s condition had been caused or aggravated by an employment activity. He noted 

that the work injury on November 21, 2001 exacerbated his lumbar spondylolisthesis at L5-S1. 

Dr. Cole noted that appellant was capable of sedentary work but was 71 years old and expected 

to be considered for retirement. 
5

On September 30, 2021 OWCP issued a notice proposing to terminate appellant’s wageloss compensation and medical benefits as he no longer had disability or residuals causally 

related to his accepted employment injury. It found that the weight of the medical evidence 

rested with Dr. Rosenberg, who found that appellant no longer had any disability or residuals 

causally related to his accepted employment injuries. OWCP afforded appellant 30 days to 

submit additional evidence or argument, in writing if he disagreed with the proposed termination. 

On October 22, 2021 appellant, through his representative, disputed the proposed 

termination. He asserted that the proposed termination of benefits was based upon the second 

opinion medical report written by a physician who diagnosed congenital spondylolisthesis, which 

was not an accepted condition and not supported by the evidence of record. The representative

further noted that Dr. Cole continued to treat appellant for an aggravation of spondylolisthesis 

and his annual reports consistently stated that appellant has had no improvement in this condition 

and his spine remained unstable.

By decision dated May 11, 2022, OWCP finalized the notice of proposed termination of 

appellant’s wage-loss compensation and medical benefits, effective that date. It found that the 

weight of the evidence was represented by Dr. Rosenberg, who opined that appellant no longer 

had disability or residuals due to the accepted employment injury.

LEGAL PRECEDENT

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

termination or modification of compensation benefits.6 It may not terminate compensation 

without establishing either that the disability has ceased or that it is no longer related to the 

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

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

entitlement for disability compensation.9 To terminate authorization for medical treatment, 

OWCP must establish that the employee no longer has residuals of an employment-related 

condition, which require further medical treatment.10

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary 

shall appoint a third physician (known as a referee physician or independent medical examiner 

6 A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 

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

7 A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 

ECAB 734 (2003).

8 R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 

284 (1988).

9 L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10 R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).
6

(IME)) who shall make an examination.11 This is called an impartial medical examination and 

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.12 When there exist opposing medical reports of virtually equal weight 

and rationale and the case is referred to an IME for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.13

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective May 11, 2022.

In his March 2 and 29, 2021 reports, Dr. Rosenberg found, based on his examination, that 

there were no objective findings to support ongoing residuals from appellant’s accepted cervical 

strain, lumbosacral sprain, and aggravation of L5-S1 spondylolisthesis. He opined that the 

present symptomology was secondary to preexisting pathology including chronic cervical and 

lumbar spondyloarthropathy and congenital L5-S1 spondylolisthesis, which were temporarily 

exacerbated by the November 21, 2001 employment injury. Dr. Rosenberg determined that 

appellant could return to full-duty work, eight hours a day, in a sedentary capacity and advised 

that the restrictions were secondary to preexisting cervical and lumbar spondyloarthropathy, 

congenital L5-S1 spondylolisthesis, and COPD.

Appellant’s treating physician, Dr. Cole, however, submitted reports through August 27, 

2021, wherein he noted that he continued to treat appellant for worsening symptoms related to 

aggravation of lumbar spondylolisthesis at L5-S1. He opined that these conditions were sequelae 

of the accepted October 1, 1996 and November 21, 2001 employment injuries. Appellant

reported his pain was 10/10 and noted marked worsening of his condition since January 2021. 

He indicated that he was unable to walk for even short distances without pain and had numbness 

in both feet. Dr. Cole noted paraspinal tenderness bilaterally, antalgic gait, forward flexed 

posture, positive straight leg raises bilaterally, and noted that appellant used a cane for assistance 

due to balance issues and the right leg occasionally giving out. He diagnosed spondylolisthesis 

of the lumbar region and opined that appellant was capable of sedentary work.

The Board, therefore, finds that there is an unresolved conflict of medical evidence 

between the opinions of Dr. Rosenberg, an OWCP referral physician, and Dr. Cole, appellant’s 

treating physician, as to whether appellant had disability and residuals from the accepted 

aggravation of lumbar spondylolisthesis at L5-S1.14 As there is a conflict in the medical opinion 

evidence prior to May 11, 2022, as to whether appellant’s accepted conditions had resolved, the 

11 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

12 20 C.F.R. § 10.321.

13 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

14 G.F., id.; S.S., Docket No. 19-1658 (issued November 12, 2020); C.W., Docket No. 18-1536 (issued 

June 24, 2019).
7

Board finds that OWCP failed to meet its burden of proof to terminate his wage-loss 

compensation and medical benefits.

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective May 11, 2022.

ORDER

IT IS HEREBY ORDERED THAT the May 11, 2022 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: July 11, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board