United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.B., Appellant

and

U.S. POSTAL SERVICE, NETWORK 

DISTRIBUTION CENTER, Philadelphia, PA, 

Employer

__________________________________________

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Docket No. 21-0483

Issued: May 19, 2022

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, 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 February 10, 2021 appellant, through counsel, filed a timely appeal from a January 4, 

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 over the merits of this case.

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

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 6, 2020, as he no longer had 

disability or residuals causally related to his accepted January 26, 2011 employment injury; and 

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

or after August 6, 2020, causally related to his accepted January 26, 2011 employment injury. 

FACTUAL HISTORY

On February 1, 2011 appellant, then a 57-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that on January 26, 20103 he injured the left side of his neck, 

right hip, and right leg while in the performance of duty.4 He explained that, when doing yard 

inventory on January 26, 2011, he slipped on ice and hit his left shoulder and right leg while in the 

performance of duty. Appellant stopped work on February 3, 2011. OWCP accepted his claim 

for temporary aggravation of preexisting right knee osteoarthritis, temporary aggravation of 

preexisting right hip osteoarthritis, lumbago, neck strain, and left shoulder contusion. It paid 

appellantwage-loss compensation on the supplemental rolls beginning March 21, 2011 and placed 

him on the periodic rolls, effective October 23, 2011. 

On May 22, 2012 appellant underwent right knee arthroscopic surgery. 

On October 2, 2019 OWCP referred appellant, along with a statement of accepted facts, a 

copy of the case record, and a series of questions, to Dr. Steven J. Valentino, an osteopath 

specializing in orthopedic surgery, for a second opinion evaluation regarding the status of his 

employment-related injuries.

In an October 22, 2019 report, Dr. Valentino reviewed the history of injury and noted 

appellant’s current complaints of low back, right knee, right hip, and left shoulder pain. Upon 

examination of the lumbar spine, he observed normal spinal curves and no spasm, trigger points, 

or subluxation. Examination of appellant’s cervical spine revealed full range of motion (ROM). 

Upon examination of the right knee, Dr. Valentino observed no synovitis or effusion and negative 

anterior and posterior drawer sign, varus and valgus stress testing, and Lachman’s and McMurray 

signs. He opined that appellant’s work-related injuries had resolved and that he could return to 

work. 

In a letter dated November 21, 2019, OWCP requested that Dr. Valentino provide a 

supplemental report clarifying how his specific examination findings supported his opinion that 

appellant’s work-related injuries had resolved. 

3 The Board notes that the Form CA-1 reports a date of injury of January 26, 2010, which appears to be a 

typographical error, as the evidence of record consistently refers to a date of injury of January 26, 2011.

4 The record reflects that appellant had a previously accepted traumatic injury claim under OWCP File No. 

xxxxxx570 for a right shoulder strain, right shoulder cuff tendinitis, and right shoulder impingement syndrome. 

Appellant also has an accepted traumatic injury claim under OWCP File No. xxxxxx783 for a left shoulder sprain. 

The cases have not been administratively combined by OWCP. 
3

In a December 2, 2019 addendum report, Dr. Valentino explained that appellant’s 

temporary aggravation of right knee osteoarthritis had resolved based on physical examination 

findings that revealed physiologic ROM without synovitis or effusion and the absence of any 

internal derangement. He also reported that appellant’s temporary aggravation of right hip 

osteoarthritis had resolved, given appellant’s full ROM and negative FABER tests. Dr. Valentino 

indicated that appellant’s left shoulder condition had resolved and noted examination findings of 

normal ROM and negative provocative testing about the shoulder. He concluded that appellant’s 

cervical strain and lumbago had resolved, given the normal ROM and absence of spasm or any 

positive tension signs. 

In a notice dated December 10, 2019, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits because he no longer had disability or residuals causally related 

to his accepted January 26, 2011 employment injury. It found that the weight of the medical 

evidence rested with Dr. Valentino who found that appellant no longer had any disability or 

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

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

termination. 

In a January 2, 2020 report, Dr. Richard J. Zamarin, a Board-certified orthopedic surgeon, 

indicated that he evaluated appellant for complaints of low back, neck, bilateral shoulder, right 

knee, and right hip pain. He described the January 26, 2011 work injury and reviewed appellant’s 

medical records. Upon examination of appellant’s cervical spine, Dr. Zamarin observed 

tenderness over the left trapezius muscle and negative Spurling’s test bilaterally with right-sided 

neck pain. Examination of appellant’s lumbar spine revealed tenderness over the bilateral 

sacroiliac (SI) joints and right paraspinal area. Dr. Zamarin reported that examination of 

appellant’s left shoulder demonstrated tenderness over the lateral and anterior subacromial space 

and decreased sensation. Upon examination of appellant’s right hip, he observed tenderness over 

the right greater trochanter and tenderness of the lateral calf. Dr. Zamarin reported that appellant’s 

accepted cervical sprain, lumbar sprain, left shoulder contusion, and right hip conditions had 

resolved. He also indicated that appellant sustained a permanent aggravation of his preexisting 

right knee osteoarthritis condition and continued to suffer residuals of this condition. Dr. Zamarin 

explained that the January 26, 2011 injury and subsequent treatment, including surgery, 

accelerated the degenerative process in appellant’s right knee. He opined that appellant was not 

capable of returning to his date-of-injury job and noted that appellant’s disability was partly a 

result of the aggravation of severe right knee degenerative joint disease. 

In progress notes dated January 8 and February 5, 2020, Dr. Dong H. Ko, a Board-certified 

physiatrist and pain medicine specialist, recounted appellant’s complaints of low back pain. Upon 

examination of appellant’s lumbar spine, he observed tenderness upon palpation bilaterally, 

limited ROM, and decreased lumbar lordosis. Dr. Ko diagnosed lumbosacral spondylosis without 

myelopathy or radiculopathy and unspecified osteoarthritis of the hip and knee. 

OWCP determined that a conflict in medical evidence existed between appellant’s treating 

physician, Dr. Zamarin, and OWCP second-opinion examiner, Dr. Valentino. It referred appellant 

to Dr. John F. Perry, a Board-certified orthopedic surgeon, to serve as an impartial medical 

examiner (IME) to resolve the conflict. 
4

In a March 10, 2020 report, Dr. Perry indicated that he reviewed appellant’s records, 

including diagnostic tests, and noted that his claim was accepted for temporary aggravation of right 

knee and right hip osteoarthritis, left shoulder contusion, cervical strain, and lumbago. He 

indicated that appellant’s number one complaint was right knee pain radiating to the right ankle. 

Upon examination of appellant’s cervical spine, Dr. Perry observed no paravertebral or trapezius 

tenderness. Examination of the lumbar spine demonstrated flexion to 90 degrees and extension to 

15 degrees. Upon examination of the right knee, Dr. Perry observed tenderness along the right 

knee medial and lateral joint lines and minimal crepitus. He diagnosed twisting injury with 

cervical spine, lumbar spine, right knee, and left shoulder sprains and strains no evidence of a 

work-related condition by objective criteria that would produce ongoing functional impairment or 

disability, and likely opioid dependency. 

Dr. Perry reported that imaging studies of appellant’s right knee, low back, right hip, and 

neck revealed degeneration and osteoarthritis changes and did not show a trauma induced 

musculoskeletal condition that would produce long-term disability. He explained that the imaging 

studies of the cervical and lumbar spine areas of appellant’s spine did not support his symptoms 

of difficulty walking and maneuvering. Dr. Perry opined that, regarding appellant’s January 26, 

2011 work injury, appellant could return to work without restrictions. He indicated that appellant 

“may have had” exacerbations of his preexisting arthritis in the neck, low back, right hip, and right 

knee, but those were “back to baseline,” based on objective criteria. Dr. Perry reported that, based 

on appellant’s preexisting arthritic conditions, appellant could return to full-time, light-duty work. 

He explained that these work restrictions were not based on appellant’s work-related injuries. 

Appellant submitted additional evidence. In an April 22, 2020 progress note, Dr. Jian 

Chen, a Board-certified preventive pain, and internal medicine specialist, noted appellant’s 

complaints of severe pain in his right leg. He diagnosed lumbosacral radiculopathy. 

In progress notes dated May 21 and June 25, 2020, Dr. Yasin N. Khan, a Board-certified 

anesthesiologist, noted appellant’s complaints of chronic low back and right leg pain. He reported 

lumbar examination findings of decreased lumbar lordosis, limited ROM, and tenderness 

bilaterally. Dr. Khan diagnosed lumbosacral spondylosis without myelopathy or radiculopathy,

and lumbar radiculopathy. 

In a June 5, 2020 progress note, Dr. Akintomi Olugbodi, a Board-certified pain and internal 

medicine specialist, reported lumbar examination findings of tenderness over the lumbar facets 

with positive facet loading bilaterally. He diagnosed lumbosacral spondylosis without myelopathy 

and unspecified osteoarthritis of the hip and knee. 

By decision dated August 6, 2020, OWCP finalized the notice of proposed termination of 

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

special weight of medical evidence rested with Dr. Perry, the IME, who indicated, in a March 10, 

2020 report, that appellant no longer had disability or residuals due to his January 26, 2011 

employment injury. 

On August 12, 2020 appellant requested a hearing before a representative of OWCP’s 

Branch of Hearings and Review. 
5

Appellant submitted additional evidence. In a July 29, 2020 progress report, Dr. Chen 

recounted appellant’s complaints of low back pain and diagnosed lumbosacral spondylosis without 

myelopathy or radiculopathy. 

In a September 26, 2020 report, Dr. Lisa Marie Sheppard, a Board-certified diagnostic 

radiologist, indicated that x-ray evaluations performed on August 18, 2020 revealed a right hip 

joint space measuring .9 millimeter (mm). She noted that x-ray evaluation of appellant’s right 

knee demonstrated medial joint space measuring 1.7 mm and lateral joint space measuring 1.9 

mm. Dr. Sheppard indicated that x-ray evaluation of appellant’s right ankle and foot revealed 

tibiotalar joint space measuring 1.4 mm, talocalcaneal joint space measuring 2.0 mm, talonavicular 

joint space measuring 1.3 mm, and calcaneocuboid joint space measuring 1.7 mm. 

In a November 11, 2020 letter, appellant, through counsel, requested a written review of 

the record in lieu of an oral hearing. 

By decision dated January 4, 2021, OWCP’s hearing representative affirmed the August 6, 

2020 termination decision. 

LEGAL PRECEDENT -- ISSUE 1

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

termination or modification of benefits.5 It may not terminate compensation without establishing 

either that the disability has ceased or that it is no longer related to the employment. 6 OWCP’s 

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 compensation.8 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.9 

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 IME) who shall make an examination. 10 

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

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

6 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). 

7 R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); DelK. Rykert, 40 ECAB 284 (1988).

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

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

10 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).
6

For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

11

 When OWCP has referred the case 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.12 

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 6, 2020.

OWCP properly determined that there was a conflict in the medical opinion evidence 

between Dr. Zamarin, appellant’streating physician, and Dr. Valentino, an OWCP second opinion 

examiner, regarding the status of appellant’s January 26, 2011 employment injury and referred 

appellant, pursuant to 5 U.S.C. § 8123(a), to Dr. Perry for an impartial medical examination and 

an opinion as to whether appellant had disability or residuals causally related to his January 26, 

2011 employment injury. 

In a March 10, 2020 report, Dr. Perry reviewed appellant’s history of injury and noted that 

his claim was accepted for temporary aggravation of right knee and right hip osteoarthritis, left 

shoulder contusion, cervical strain, and lumbago. He provided examination findings and indicated 

that imaging studies of appellant’s right knee, low back, right hip, and left side of the neck revealed 

degeneration and osteoarthritis changes. Dr. Perry explained that none of the imaging studies 

showed a trauma-induced musculoskeletal condition that would produce long-term disability. He 

opined that appellant did not have any work restrictions causally related to his January 26, 2011 

work injury and noted that any work restrictions were a result of appellant’s preexisting 

degenerative conditions. Dr. Perry reported that appellant “may have had” exacerbations of his 

preexisting arthritis in the neck, low back, right hip, and right knee, but those were “back to 

baseline,” based on objective criteria. 

The Board finds that Dr. Perry’s report did not contain sufficient medical reasoning to 

establish that appellant no longer had disability or residuals due to his January 26, 2011 

employment injury.

13

 While he opined that appellant had no disability causally related to his 

accepted conditions, Dr. Perry did not specifically explain, with medical rationale, whether all of 

appellant’s work-related injuries had resolved. He concluded that the preexisting arthritis in 

appellant’s neck, low back, right hip, and right knee were “back to baseline.” However, Dr. Perry 

did not explain whether or how this conclusion was supported by objective evidence.

14

 

Rationalized medical evidence must include rationale explaining how the physician reached the 

11 H.B., Docket No. 19-0926 (issued September 10, 2020); C.H., Docket No. 18-1065 (issued November 29, 2018);

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

12 S.S., Docket No. 19-0766 (issued December 13, 2019); W.M., Docket No. 18-0957 (issued October 15, 2018); 

Gloria J. Godfrey, 52 ECAB 486 (2001).

13 See C.G., Docket No. 20-0808 (issued April23, 2021); J.W., Docket No. 19-1014 (issued October 24, 2019).

14 See A.G., Docket No. 21-0315 (issued December 29, 2021).
7

conclusion he or she is supporting.15 His opinion that appellant could return to modified work due 

to nonwork-related conditions, istherefore of diminished probative value and insufficient to justify 

the termination of appellant’s wage-loss compensation and medical benefits.16 The Board thus 

finds that OWCP did not meet its burden of proof.

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 6, 2020.

17

ORDER

IT IS HEREBY ORDERED THAT the January 4, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: May 19, 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

15 B.B., Docket No. 19-1102 (issued November 7, 2019); BeverlyA. Spencer, 55 ECAB 501 (2004).

16 S.R., Docket No. 19-1229 (issued May 15, 2020); B.M., Docket No. 21-0101 (issued December 15, 2021); D.M., 

Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008).

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