United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.P., Appellant

and

U.S. POSTAL SERVICE, WESTVILLE POST 

OFFICE, Westville, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-0173

Issued: March 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:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 24, 2020 appellant, through counsel, filed a timely appeal from a June 1, 

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.

ISSUES

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

wage-loss compensation and medical benefits, effective November 22, 2019, as he no longer had 

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.
2

disability or residuals causally related to his accepted December 1, 2006 employment injury; and 

(2) whether appellant met his burden of proof to establish continuing disability or residuals 

causally related to his accepted December 1, 2006 employment injury after November 22, 2019.

FACTUAL HISTORY

On December 8, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 1, 2006 he sustained a back injury when two dogs 

attacked him from behind and he twisted his back while in the performance of duty. He stopped 

work on the date of the claimed injury and returned to limited-duty work several months later.

3

 

OWCP assigned OWCP File No. xxxxxx368 to the claim and accepted it for lumbar sprain and 

lumbago.4

Appellant received treatment for his December 1, 2006 employment-related back injury 

from several attending physicians, including Dr. David A. Bundens, a Board-certified orthopedic 

surgeon, and Dr. Laura E. Ross, an osteopath and Board-certified orthopedic surgeon. X-rays of 

appellant’s lumbar spine from December 21, 2006 contained an impression of degenerative 

changes of the lumbar discs, predominately at L5-S1. On January 4 and 12, 2010 Dr. Bundens 

indicated that appellant was performing his regular duties on a full-time basis with some 

complaints of back discomfort. Appellant stopped work on June 19, 2010. In an October 14, 2013 

report, Dr. Ross diagnosed lumbar herniation and radiculitis of the right leg.

OWCP engaged in extensive development of the medical evidence between2013 and 2018, 

including referral to three OWCP referral physicians and two impartial medical specialists.

5

 In a 

June 29, 2018 report, Dr. Roy B. Friedenthal, a Board-certified orthopedic surgeon who served as 

the second of the two impartial medical specialists, reported the findings of his May 17, 2018 

physical examination and determined that appellant did not have any work-related residuals or 

disability.6

3 OWCP paid appellant wage-loss compensation on the supplemental rolls for intermittent periods of disability 

from work commencing December 11, 2009.

4 Under a separate claim, assigned OWCP File No. xxxxxx201, OWCP previously accepted that appellant sustained 

a right wrist strain and right knee tenosynovitis when he pushed a plastic tub on September 29, 2000. Under another 

separate claim, assigned OWCP File No. xxxxxx165, it accepted that he sustained a lumbar sprain related to carrying 

telephone books on November 28, 2001. Appellant commenced working in a light-duty position on November 29, 

2001 and returned to his regular duties on December 19, 2001. After a period of disability related to OWCPauthorized right wrist surgery performed on April 4, 2004 in connection with his claim under OWCP File No. 

xxxxxx201, he returned to his regular duties in June 2005.

5 Commencing March 8, 2015, OWCP placed appellant on the periodic rolls and paid him wage-loss compensation 

for total disability.

6 OWCP had determined that there was a conflict in the medical opinion evidence between Dr. Ross and

Dr. Andrew Newman, a Board-certified orthopedic surgeon who served as an OWCP referral physician. In a June 1, 

2017 report, Dr.Newman determined that appellant’s December 1, 2006 employment injury had resolved. In a July 7, 

2017 report, Dr.Ross opined that appellant continued to have residuals of the December 1, 2006 lumbar sprain and 

that he was totally disabled.
3

In a July 30, 2018 report, Dr. Ross indicated that appellant’s current diagnosed conditions 

that were causally related to the December 1, 2006 employment injury included multilevel lumbar 

disc protrusions with herniations at L1-2 and L3-4 and disc bulges at multiple levels with annular 

tears at L1-2, L3-4, and L4-5. She indicated that objective findings of the injury still existed, 

including spasm in the lumbar spine. Dr. Ross advised that appellant was medically able to return 

to work with restrictions of lifting no more than 10 pounds, and working no more than eight hours 

at a time. She advised that appellant could sit for five hours in total, and stand for three hours 

altogether with breaks.

In a March 6, 2019 notice, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits as he no longer had residuals or disability causally related 

to his accepted December 1, 2006 employment injury. It informed appellant that the special weight 

of the medical opinion evidence rested with the report of Dr. Friedenthal, the impartial medical 

specialist. OWCP afforded appellant 30 days to submit evidence and argument challenging the 

proposed action.

Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still 

had bilateral spasms in his lumbar spine and indicated that his current work status was “out of 

work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of 

appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel 

lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with 

annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild 

chondromalacia patella and joint effusion. Dr. Ross repeated her prior findings and noted, “[h]is 

specific work-related condition has not resolved.” He indicated that appellant was medically able 

to return to work with restrictions of lifting no more than 10 pounds and working no more than 8 

hours at a time. Appellant was able to sit for 45 to 60 minutes continuously, stand for 

approximately 30 minutes continuously, sit for five hours altogether, and stand for three hours 

altogether with breaks. Dr. Ross differed with Dr. Friedenthal’s assessment that appellant merely 

sustained a lumbar strain, as this is not what was noted on his magnetic resonance imaging (MRI)

scan of the lumbar spine. She disagreed with Dr. Friedenthal’s assessment that the aggravation of 

appellant’s condition ceased when he returned to full-duty work three or four months after 

December 1, 2006.

Appellant, through counsel, argued that Dr. Friedenthal’s June 29, 2018 report did not 

contain adequate medical rationale in support of its conclusions and that all of the relevant medical 

documents were not provided to Dr. Friedenthal for review. 

In early-September 2019, OWCP determined that it would not pursue action based on the

Dr. Friedenthal’s opinion, which had been based on a physical examination conducted on 

May 17, 2018.

OWCP then referred appellant, along with a statement of accepted facts (SOAF) and series 

of questions, for a second opinion examination and evaluation with Dr. Stanley Askin, a Boardcertified orthopedic surgeon. It requested that he provide an opinion regarding whether appellant 

continued to have residuals of his accepted December 1, 2006 employment injury.
4

In a September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical 

history and reported the findings of his physical examination. He noted that appellant showed full 

range of motion of his elbows, forearms, wrists, fingers, and thumbs, and that muscle function of 

the trapezii, latissimus dorsi, pectoralis major, deltoids, triceps, wrist flexors, and wrist extensors 

was intact bilaterally. Appellant reported that, when he moved his right wrist, there was pain in 

the radial aspect of his forearm, but not over the wrist joint proper. Dr. Askin reported that the 

Finkelstein’s test for de Quervain’s tendinitis and testing for the intersection syndrome were 

negative for the respective conditions. He indicated that appellant reported pain in the radial aspect 

of his right forearm, but that this was “a subjective report without objective manifestation.” 

Straight-leg raising was negative to 90 degrees while seated and appellant’s low back muscles 

relaxed appropriately on alternate leg stance from which it is concluded that there was no present 

muscle spasm. Dr. Askin noted that appellant offered 80 degrees of forward flexion and 10 degrees 

of side-bending to each side, which was quite reasonable for a 62-year-old person. Examination 

of appellant’s knees revealed full range of motion and normal ligamentous function. Dr. Askin 

opined that appellant ceased to have residuals of the accepted lumbar sprain and lumbago 

conditions sustained on December 1, 2006, noting that he had no objective findings other than the 

fact that he examined as a rather typical 62-year-old man. He indicated, “[appellant] does not have 

any concurrent nonwork-related disability, apart from the fact that when a person is 62 years of 

age he is not as physically capable as when he was 20 years of age, but that is a biologically 

imposed consequence of senescence.” Dr. Askin advised that there was nothing identifiably 

objective that would preclude appellant’s resumption of his employment activities.

By decision dated November 22, 2019, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective that date, as he no longer had residuals or disability 

causally related to his accepted December 1, 2006 employment injury. It found that the weight of 

the medical evidence rested with the opinion of Dr. Askin.

On December 2, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Appellant submitted a December 9, 2019 duty status report (Form CA-17) from Dr. Scott 

Fried, a Board-certified orthopedic surgeon, who diagnosed right wrist sprain/tenosynovitis and 

recommended work restrictions. In a December 9, 2019 work capacity evaluation report (Form 

OWCP-5c), he also recommended work restrictions. Appellant also submitted a functional 

capacity evaluation (FCE) report, signed by Dr. Fried on December 6, 2019, which showed that 

appellant could lift or carry up to 10 pounds.

During the hearing held on April 6, 2020, counsel argued that the weight of the medical 

opinion evidence rested with the opinion of Dr. Ross who found continuing employment-related 

residuals and disability.

By decision dated June 1, 2020, OWCP’s hearing representative affirmed the 

November 22, 2019 decision.
5

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.7 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.8 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.9

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

entitlement for disability compensation.10 To terminate authorization for medical treatment, 

OWCP must establish that appellant no longer has residuals of an employment-related condition 

which require further medical treatment.11

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 November 22, 2019.

The weight of the medical evidence is represented by the thorough, well-rationalized 

opinion of Dr. Askin, the OWCP referral physician. The September 27, 2019 report of Dr. Askin 

establishes that appellant had no residuals or disability due to his accepted December 1, 2006 

employment injury after November 23, 2019.

In his September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical 

history and reported the findings of his physical examination. He opined that appellant ceased to 

have residuals of the accepted lumbar sprain and lumbago conditions sustained on December 1, 

2006, noting that he had no objective findings other than the fact that he examined as a rather 

typical 62-year-old man. Dr. Askin indicated, “[appellant] does not have any concurrent nonworkrelated disability, apart from the fact that when a person is 62 years of age he is not as physically 

capable as when he was 20 years of age, but that is a biologically imposed consequence of 

senescence.” He advised that there was nothing identifiably objective that would preclude 

appellant’s resumption of his employment activities.

The Board has reviewed the opinion of Dr. Askin and finds that it has reliability, probative 

value and convincing quality with respect to its conclusions regarding the relevant issue of 

7 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).

8

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).

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

10 A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August5, 2009); T.P., 58 

ECAB 524 (2007); KathrynE. Demarsh, 56 ECAB 677 (2005). FurmanG. Peake, 41 ECAB 361, 364 (1990).

11 See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); PamelaK. Guesford, 53 ECAB 727 (2002).
6

continuing residuals/disability related to the December 1, 2006 employment injury. Dr. Askin

provided a thorough factual and medical history and accurately summarized the relevant medical 

evidence. He provided medical rationale for his opinion by explaining that appellant had no 

objective findings of the accepted lumbar sprain and lumbago.12

Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still 

had bilateral spasms in his lumbar spine and indicated that his current work status was “out of 

work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of 

appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel 

lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with 

annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild 

chondromalacia patella and joint effusion. Dr. Ross indicated that appellant sustained these 

injuries due to the December 1, 2006 work-related incident and found that he still had findings 

including spasm in the lumbar spine. She recommended work restrictions and noted, “[h]is 

specific work-related condition has not resolved.”

The Board finds, however, that Dr. Ross’reports are of limited probative value with respect 

to OWCP’s termination action because it has not been accepted that appellant sustained her abovedetailed diagnosed conditions in connection with the December 1, 2006 employment injury. 

Dr. Ross has not otherwise explained, with medical rationale, how such injuries were sustained by 

appellant on December 1, 2006. The Board has held that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale explaining how a given 

medical condition/level of disability has an employment-related cause.13 Therefore, these reports

are insufficient to support appellant’s claim that OWCP improperly terminated compensation. 

As the evidence of record is insufficient to overcome the weight accorded to Dr. Askin, the 

Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits.

LEGAL PRECEDENT -- ISSUE 2

When OWCP properly terminates compensation benefits, the burden shifts to appellant to 

establish continuing residuals or disability after that date, causally related to the accepted 

employment injury.14 To establish causal relationship between the condition as well as any 

attendant disability claimed and the employment injury, an employee must submit rationalized 

12 See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018); 

Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors 

as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical 

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

13 See T.T., Docket No. 18-1054 (issued April8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

14 See S.M., Docket No. 18-0673 (issued January 25, 2019); C.S., Docket No. 18-0952 (issued October 23, 2018); 

Manuel Gill, 52 ECAB 282 (2001).
7

medical evidence based on a complete medical and factual background, supporting such causal 

relationship.15

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish continuing 

disability or residuals causally related to his accepted December 1, 2006 employment injury after 

November 22, 2019.

After OWCP’s November 22, 2019 decision terminating appellant’s compensation 

effective the same date, appellant submitted additional medical evidence, which he felt showed 

that he was entitled to compensation after November 22, 2019 due to residuals of his December 1, 

2006 employment injury. Given that the Board has found that OWCP properly relied on the 

opinion of the OWCP referral physician, Dr. Askin, in terminating appellant’s compensation 

effective November 22, 2019, the burden shifts to appellant to establish that he is entitled to 

compensation after that date.

Appellant submitted a December 9, 2019 duty status report from Dr. Fried who diagnosed 

right wrist sprain/tenosynovitis and recommended work restrictions. In a December 9, 2019 work 

capacity evaluation report, Dr. Fried also recommended work restrictions. Appellant also 

submitted an FCE report, signed by Dr. Fried on December 6, 2019, which showed that appellant 

could lift or carry up to 10 pounds. The Board has reviewed the additional evidence submitted by 

appellant and finds that it is not of sufficient probative value to establish that he had 

residuals/disability related to his December 1, 2006 employment injury after November 22, 2019. 

As noted above, it has not been accepted that appellant sustained a wrist injury on December 1, 

2006 and none of these reports contains an opinion that appellant had residuals/disability due to 

the accepted lumbar sprain or lumbago conditions. The Board has held that medical evidence that 

does not offer an opinion regarding work-related residuals or disability is of no probative value on 

the issue of causal relationship.

16

As appellant has not submitted any rationalized medical evidence establishing that he had 

employment-related disability or residuals after November 22, 2019, causally related to the 

accepted December 1, 2006 employment injury, he has not met his burden of proof.

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 November 22, 2019. The Board further 

15 Id.

16 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
8

finds that appellant has not met his burden of proof to establish continuing disability or residuals 

causally related to his accepted December 1, 2006 employment injury after November 22, 2019.

ORDER

IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 23, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board