United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.N., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BROOKLYN VA MEDICAL CENTER, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 21-0980

Issued: July 24, 2023

Appearances: Case Submitted on the Record

Paul Kalker, 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 June 14, 2021 appellant, through counsel, filed a timely appeal from a May 10, 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 to consider 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 May10, 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 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

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 26, 2020,finding that she no longer had 

disability or residuals causally related to her accepted June 19, 2017 employment injury; and 

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

or after March 26, 2020, causally related to the accepted June 19, 2017 employment injury.

FACTUAL HISTORY

On June 22, 2017 appellant, then a 54-year-old licensed practical nurse, filed a traumatic 

injury claim (Form CA-1) alleging that on June 19, 2017 she injured her back when she tripped 

and fell while in the performance of duty. She stopped work on June 29, 2017. OWCP accepted 

the claim for cervical, left knee, and left foot sprains and strains. It authorized wage-loss 

compensation on the supplemental rolls beginning August 31, 2017. Appellant returned to fullduty work on October 16, 2017.

On July 24, 2017 appellant underwent a lumbar spine magnetic resonance imaging (MRI) 

scan which demonstrated disc bulges at L1-2 and disc herniations at L2-3, L3-4, L4-5, and L5-S1. 

OWCP subsequently expanded the acceptance of appellant’s claim to include lumbar spine 

derangement. It further accepted that she sustained a recurrence of disability on January 16, 2018 

and authorized wage-loss compensation on the supplemental rolls beginning November 21, 2017. 

OWCP paid appellant wage-loss compensation on the periodic rolls beginning April 21, 2018.

On June 7, 2018 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

list of questions to Dr. Andrew Farber, an osteopath, for a second opinion evaluation with regard 

to the status of appellant’s accepted conditions.

In his July 10, 2018 report, Dr. Farber noted appellant’s history of injury, reviewed her 

medical records and provided his findings on physical examination. He found that her left foot 

and left knee sprains/strains had resolved, but that she continued to experience disabling residuals 

of her accepted lumbar spine injury. Dr. Faber noted that there were no imaging studies or 

treatment reports regarding the cervical spine. He determined that appellant could work in a 

sedentary position lifting no more than 10 pounds. In a work capacity evaluation (Form 

OWCP-5c) of even date, Dr. Faber found that she could work full time with restrictions on walking 

and standing up to two hours per day and pushing, pulling, and lifting up to 10 pounds for eight

hours per day. 

On July 12 and August 9, 2018 appellant’s attending physician, Dr. Howard I. Baum, a 

Board-certified orthopedic surgeon, found that she was totally disabled from work due to cervical 

spine derangement, lumbar spine derangement, and left foot derangement.

On August 18, 2018 appellant underwent an authorized cervical spine MRI scan, which 

demonstrated disc bulges at C2-3, C3-4, C4-5, and C7-T1 as well as a disc herniation at C6-7.

In reports dated September 6, and October 4 and 30, 2018, Dr. Baum diagnosed multilevel 

cervical disc herniations with bulging and thecal sac impingement, lumbar spine internal 
3

derangement, and cervical spine internal derangement due to the accepted work-related injury. He 

found that appellant was totally disabled from work.

On November 6, 2018 Dr. Yolande Bernard, a Board-certified physiatrist, noted that 

appellant was injured at work on June 19, 2017 and that Dr. Baum continued to find her disabled 

from work. On physical examination, she reported appellant’s pain with cervical and lumbar 

motion, and found diminished motor strength in the bilateral hip flexors and left knee extensors 

with normal sensation to fine touch in the upper and lower extremities. Dr. Bernard diagnosed 

cervical and lumbar herniated discs and myofascial derangement, and sprains/strains of the right 

hip, left knee, and left foot. She opined that appellant’s current conditions were directly related to 

her June 19, 2017 employment injury.

On November 6, 2018 Dr. Angel Macagno, a Board-certified orthopedic surgeon, noted 

appellant’s history of injury and performed a physical examination, finding evidence of muscle 

weakness of the left wrist dorsiflexor, decreased sensation to pinprick and light touch in the left 

C6 distribution, and absent left brachial radialis reflex. He further found evidence of bilateral 

paraspinal muscular spasms and tenderness to palpation. Dr. Macagno attributed appellant’s neck 

and low back pain to her June 19, 2017 employment injury and diagnosed cervicalgia, low back 

pain, herniation of lumbar disc, and herniation of cervical disc. He opined that based on her history 

and clinical evaluation, her current conditions were work related and consistent with her June 19, 

2017 employment injury.

On November 9, 2018 OWCP determined that a conflict in evidence arose between

Dr. Baum and appellant’s treating physicians regarding whether appellant had continuing 

disability and residuals from the accepted employment injury. It referred appellant to Dr. Alan 

Crystal, a Board-certified orthopedic surgeon, to serve as an impartial medical examiner (IME).

On November 27, 2018 Dr. Baum noted appellant’s reports of low back pain radiating to 

her posterior thighs, as well as bilateral shoulder and hand weakness. He diagnosed multilevel 

cervical disc herniation and lumbar spine internal derangement. Dr. Baum found that appellant 

was totally disabled.

In a December 5, 2018 report, Dr. Crystal reviewed appellant’s history of injury, medical 

treatment, and the SOAF. On examination, he found no objective clinical findings. Dr. Crystal 

discussed appellant’s accepted conditions of cervical sprain/strain, lumbar spine derangement, left 

knee sprain/strain, and left foot sprain/strain. He found that there were no additional conditions 

related to the employment injury of June 19, 2017. In regard to appellant’s MRI scan findings of 

bulging and herniated cervical discs, Dr. Crystal found that the medical record did not have any 

documentation that would correlate these disc herniations with the June 19, 2017 employment 

injury. He opined that if the disc herniations were traumatic, the MRI scan would also have 

showed soft tissue and ligament damage. Dr. Crystal concluded that appellant’s herniated cervical 

disc was not related to her accepted employment injury and that there were no other medical 

conditions causally related to the June 19, 2017 employment injury. He found that she had no 

current disability due to her accepted employment injuries as there was no physical condition 

limiting her movements, senses, or activities. Dr. Crystal concluded that appellant could perform 

her regular work duties on July 10, 2018, and that she required no further medical treatment.
4

On January 3 and 31, 2019 Dr. Baum diagnosed multilevel disc herniation of the cervical 

spine, and lumbar spine internal derangement with disc herniation. He found that appellant was 

totally disabled.

In a letter dated February 6, 2019, OWCP requested that Dr. Crystal clarify whether

appellant’s diagnosed lumbar spondylosis was employment related, whether her diagnosed 

cervical and lumbar spondylosis was caused or aggravated by her June 19, 2017 employment 

injury, and whether her arthritis had been caused or aggravated by her June 19, 2017 employment 

injury.

In an addendum report dated February 20, 2019, Dr. Crystal advised that appellant had not 

sustained left shoulder derangement, right hip strain, left foot derangement, or pain syndrome 

causally related to the accepted employment injury. He explained that he had reviewed the medical 

evidence and opined that the additional conditions of cervical and lumbar spondylosis were 

causally related to the June 19, 2017 employment injury as appellant’s subjective complaints were 

consistent with these diagnoses which were demonstrated on her cervical and lumbar MRI scans. 

Dr. Crystalfound that these conditions were aggravated by appellant’s employment injury and that 

since she still experienced subjective complaints which correlated with aggravated cervical and 

lumbar spondylosis, the aggravation was permanent. He concluded that she had no objective 

findings which would contradict a return to full-time work and that she did not require further 

medical treatment.

On February 7, 2019 appellant underwent electromyogram and nerve conduction velocity 

(EMG/NCV) studies, which demonstrated left C6 radiculopathy, and bilateral sensory carpal 

tunnel syndrome.

In a February 28, 2019 note, Dr. Baum found left C6 radiculopathy based on EMG/NCV 

study and noted burning and pain radiating down into appellant’s left arm.

In a letter dated March 19, 2019, OWCP requested that Dr. Crystal further clarify how 

appellant had a permanent aggravation of preexisting cervical and lumbar spondylosis, bu t no 

residuals of the accepted work injury. It asked whether she could return to full-time full-duty work 

with no restrictions.

On March 28, 2019 Dr. Baum diagnosed C6 radiculopathy, multilevel disc herniations in 

the cervical and lumbar areas of the spine, and left shoulder internal derangement. He found that 

appellant was totally disabled from work.

In an April 1, 2019 addendum report, Dr. Crystal found that appellant had subjective 

symptoms of cervical spondylosis and lumbar spondylosis, but no objective symptoms. He opined 

that the cervical and lumbar spondylosis were causally related to the June 19, 2017 employment 

injury based on her subjective complaints. Dr. Crystal determined that appellant had referred, but 

not radicular pain, with no objective findings. He opined that the aggravation of the cervical and 

lumbar spondylosis was permanent as she continued to have subjective symptoms. Dr. Crystal

further advised that appellant had sustained a temporary aggravation of left knee and foot arthritis 

that had resolved without objective findings. He opined that she required no further medical 

treatment and could return to full duty.
5

In a letter dated May 9, 2019, OWCP requested an additional supplemental report from

Dr. Crystal and provided appellant’s EMG/NCV results.

In April 23, May 23, and June 20, 2019 reports, Dr. Baum diagnosed L5-S1 radiculopathy, 

C6 radiculopathy, and found that appellant was totally disabled. On June 20, 2019 he again 

determined that she was totally disabled.

On June 24, 2019 Dr. Crystal asserted that appellant’s cervical and lumbar spondylosis 

were aggravated by her accepted employment injury. He related that spinal spondylosis could be 

asymptomatic or symptomatic, and that symptomatic spondylosis could cause axial referred pain 

without objective findings. Dr. Crystal indicated that the natural progression of spondylosis could,

in time, result in radicular symptoms. He opined that appellant’s radicular symptoms as 

demonstrated on February 7, 2019 EMG/NCV study were not causally related to her employment 

injury as 18 months had passed since the injury. Dr. Crystal reported that patients who have 

cervical spondylosis could develop spontaneous acute radiculopathies that were not causally 

related to any trauma, and that appellant may have developed a radiculopathy, but this condition 

was not related to her fall. He further determined that as pain was not a valid diagnosis under 

FECA, then aggravation of preexisting lumbar or cervical spondylosis was not a valid diagnosis. 

Dr. Crystal found that, if objective findings were required to establish ongoing lumbar 

derangement, this condition was not extant as there were no objective findings on examination to 

confirm appellant’s subjective complaints of pain, which was not a diagnosis. However, he noted 

that a fall could aggravate preexisting arthritis or lumbar derangement. Dr. Crystal recommended 

that he perform an additional physical examination.

In July 18, August 19, October 10, November 7, and December 10, 2019 reports,

Dr. Baum diagnosed cervical and lumbar spine herniated disc syndrome. He found that appellant 

was totally disabled from work.

On October 29, 2019 OWCP referred appellant for a another impartial medical 

examination by Dr. Crystal.

In a report dated November 20, 2019, Dr. Crystal reviewedappellant’s medical records and 

noted her history of injury. He found mild spondylosis at C4-5 with moderate spondylosis at C6-7 

as well as grade 1 anteriolisthesis of C7 on T1 and multiple cervical disc narrowing’s on x-rays. 

Appellant’s left foot and ankle x-rays demonstrated a left moderate-sized plantar calcaneal spur. 

Lumbar x-rays demonstrated mild spondylosis at L1-2, moderate spondylosis at L2-3 and L3-4 as 

well as multilevel disc space degenerative narrowing. Dr. Crystal performed a physical 

examination and found that appellant had a difficult time moving from supine to sitting and vice 

versa which he felt was consistent with exaggeratory symptoms. He found no subjective deficits 

in sensation. Dr. Crystal asserted that there were no additional conditions causally related to the 

June 19, 2017 employment injury. He determined that the additional diagnoses provided by 

appellant’s physicians were not related to the June 19, 2017 employment injury. Dr. Crystal 

opined that there were no objective physical findings consistent with a cervical herniated disc 

impinging on a nerve root and that the diagnosis of cervical radiculopathy was not related to the 

injury of June 19, 2017. He noted that the medical record did not contain any objective evidence 

of physical findings consistent with a cervical radiculopathy prior to the February 7, 2019 

EMG/NCV testing. Dr. Crystal found that the additional lumbar diagnoses of lumbar herniated 

discs and lumbar myofascial derangements were not causally related to the accepted employment 

injury. He further determined that the diagnoses of right hip strain, left shoulder derangement, left 
6

foot derangement, and pain syndrome were unrelated to the June 19, 2017 employment injury. 

Dr. Crystal opined that appellant’s spine conditions were not aggravated by the June 19, 2017 fall. 

However, he noted that she had subjective complaints that corresponded with the objective 

findings of spondylosis on cervical and lumbar x-rays. Dr. Crystal found that appellant had no 

current employment-related disability and that any disability due to her June 19, 2017 employment 

injury had resolved. He found that she could return to her date-of-injury position and that she did 

not require additional treatment for her accepted employment injuries.

On February 21, 2020 OWCP notified appellant that it proposed to terminate her wageloss compensation and medical benefits as the special weight of the evidence established that she 

no longer had any employment-related residuals or disability due to her accepted employment 

injury. It afforded her 30 days to submit additional evidence or argument if she disagreed with the 

proposed termination.

On March 12, 2020 appellant, through counsel, responded and disagreed with the proposed 

termination. Appellant provided additional medical evidence from Dr. Baum dated February 13, 

2020 diagnosing cervical and lumbar spine derangement with herniated disc and spondylosis. 

Dr. Baum found that appellant was totally disabled from work.

By decision dated March 25, 2020, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective March 26, 2020. It found that Dr. Crystal’s opinion represented 

the special weight of the evidence and established that she had no further disability or residuals of 

her accepted employment injury.

On February 10, 2021 appellant, through counsel, requested reconsideration of the 

March 25, 2020 decision. Counsel contended that Dr. Crystal’s reports were internally 

inconsistent and insufficiently rationalized to meet OWCP’s burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits. Counsel submitted an additional report 

from Dr. Baum dated May 13, 2020. Dr. Baum opined that appellant’s lumbar and cervical 

conditions were employment related and that she remained disabled.

By decision dated May 10, 2021, OWCP denied modification of its May 10, 2021 decision.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination 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

4 G.M., Docket No. 21-0401 (issued September 14, 2021); R.H., Docket No. 19-1064 (issued October 9, 2020); 

M.M., Docket No. 17-1264 (issued December 3, 2018).

5 A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

6 C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).
7

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

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the 

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

Secretary shall appoint a third physician who shall make an examination.”

9

 Where a case is 

referred to an IME for the purpose of resolving a conflict, the opinion of such specialist, if 

sufficiently well rationalized and based on a proper factual and medical background must be given 

special weight.10

ANALYSIS -- ISSUE 1

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

wage-loss compensation and medical benefits, effective March 26, 2020.

OWCP declared a conflict in medical opinion between appellant’s treating physicians and

Dr. Baum, its second opinion physician, regarding appellant’s ability to return to work. It properly 

referred appellant for an IME with Dr. Crystal to resolve the conflict in the medical opinion 

evidence, pursuant to 5 U.S.C. § 8123(a).

In his December 5, 2018 report, Dr.Crystal found that appellant had no objective findings, 

no disability, and no medical residuals due to her accepted employment injury. OWCP 

subsequently requested clarification from Dr. Crystal on multiple occasions. On February 20, 

2019 Dr. Crystal opined that the additional conditions of permanent aggravation of cervical and 

lumbar spondylosis should be accepted as causally related to the June 19, 2017 employment injury 

as her subjective complaints were consistent with these diagnoses which were demonstrated on 

her cervical and lumbar MRI scans. In an April 1, 2019 addendum report, he found that appellant 

had referred pain with no objective findings. Dr. Crystal determined that her aggravation of the 

preexisting spondylosis was permanent. On June 24, 2019 he found that appellant’s conditions of 

cervical and lumbar spondylosis were aggravated by her accepted employment injury, but that her

radicular symptoms as demonstrated on the February 7, 2019 EMG/NCV study were not causally 

related to her employment injury. Dr. Crystal also noted that a fall could aggravate preexisting 

arthritis or spinal derangement.

In his November 20, 2019 report, Dr. Crystal reverted to his original finding that there were 

no additional conditions causally related to the June 19, 2017 employment injury. He indicated 

that the medical record did not contain any objective evidence of physical findings consistent with 

a cervical radiculopathy prior to the February 7, 2019 EMG/NCV study. Dr. Crystal found that 

7 E.J., Docket No. 20-0013 (issued November 19, 2020); L.W.,Docket No. 18-1372 (issued February 27, 2019).

8 A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

9

5 U.S.C. § 8123(a); S.J., Docket No. 22-0936 (issued April 27, 2023); J.K., Docket No. 18-1250 (issued 

June 25, 2019).

10 20 C.F.R. § 10.321; L.S., Docket No. 20-1204 (issued October 4, 2021); T.D., Docket No. 17-1011 (issued 

January 17, 2018).
8

the additional lumbar diagnoses of lumbar herniated discs and lumbar myofascial derangements 

were not causally related to the accepted employment injury as appellant’s December 2, 2019 

x-rays established that these conditions were degenerative. He opined that appellant’s spine 

conditions were not aggravated by the June 19, 2017 fall. However, Dr. Crystal noted that she had 

subjective complaints that corresponded with the objective findings of spondylosis on cervical and 

lumbar x-rays. He determined that appellant had no current employment-related disability and 

that any disability due to her June 19, 2017 employment injury had resolved. Dr. Crystal found 

that she could return to her date-of-injury position and that she did not require additional treatment 

for her accepted employment injuries.

Dr. Crystal has provided conflicting opinions regarding whether the conditions of cervical 

and lumbar spondylosis should be accepted as causally related to the June 19, 2017 employment 

injury. The Board has held that an opinion which is equivocal in nature is of limited probative 

value regarding the medical matter addressed.11 As Dr. Crystal has not offered a clear explanation

that appellant no longer had disability or required medical treatment for her accepted employment 

injuries, his opinion cannot constitute the special weight of medical evidence.12 When an IME 

fails to provide medical reasoning to support his or her conclusory statements about a claimant’s 

condition, it is insufficient to resolve a conflict in the medical evidence.13 

Because OWCP relied on the opinion of Dr. Crystal to terminate appellant’s wage-loss 

compensation and medical benefits, effective March 26, 2020, without having resolved the 

existing conflict in the medical opinion evidence, the Board finds that OWCP failed to meet its 

burden of proof.14

CONCLUSION

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

wage-loss compensation and medical benefits, effective March 26, 2020.

11 See P.J., Docket No. 20-0550 (issued April26, 2021); E.B., Docket No. 18-1060 (issued November 1, 2018); 

Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

12 G.M., Docket No. 21-0401 (issued September 14, 2021); R.O.,Docket No. 19-0885 (issued November 4, 2019); 

Roger Dingess, 47 ECAB 123 (1995).

13 G.M., id.; M.P., Docket No 16-0551 (issued May 19, 2017); James T. Johnson, 39 ECAB 1252 (1988).

14 In light of the Board’s disposition with regard to Issue 1, Issue 2 is rendered moot.
9

ORDER

IT IS HEREBY ORDERED THAT the May 10, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: July 24, 2023

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