United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Johnstown, PA, Employer

__________________________________________

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Docket No. 21-0809

Issued: August 2, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 4, 2021 appellant, through counsel, filed a timely appeal from a March 31, 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.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 OWCP received additional evidence following the May 31, 2021 decision. However, the Board’s Rules of 

Procedures provides: “The Board’s review of a case is limited to the evidence in the case record that wa s 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 has met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective October 11, 2020, as he no longer had 

disability or residuals due to his accepted July 13, 2017 employment injury; and (2) whether 

appellant has met his burden of proof to establish continuing employment-related disability or 

residuals on or after October 11, 2020, causally related to his accepted July 13, 2017 employment 

injury.

FACTUAL HISTORY

On July 19, 2017 appellant, then a 41-year-old city carrier assistant, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a muscle tear of the rectus femoris muscle 

and tendons at thigh levelon the right due to factors of his federal employment including delivering 

mail on foot, entering and exiting his mail truck several times daily, and walking on uneven 

ground. He noted that he first became aware of his condition on July 13, 2017 and realized its 

relation to his federal employment on July 18, 2017. Appellant stopped work on July 18, 2017. 

On July 29, 2017 appellant underwent a right short cephalomedullary fixation of his right 

femoral fracture. 

On September 21, 2017 OWCP accepted the claim for fracture of unspecified part of neck 

of right femur. It paid appellant wage-loss compensation on the supplemental rolls effective 

July 23, 2017, and on the periodic rolls effective November 12, 2017. 

Appellant returned to work on May 7, 2019 in a modified position as a city carrier 

technician. The job duties included casing routes and sorting parcels. Appellant filed claims for 

compensation (Form CA-7) for disability from work commencing May 14, 2019. 

In a June 13, 2019 report, Dr. William Bergin, a Board-certified physiatrist and an 

osteopath, noted appellant’s history that he had a right hairline stress fracture of the hip, with rod 

placement in July 2017 and removal of hardware in April 2018. He related that a functional 

capacity evaluation had cleared appellant to return to medium level duties, with no frequent 

walking or standing, however, appellant was sent back to his daily mail route and was on his feet 

all day. Dr. Bergin provided an assessment of gait abnormality, low back and bilateral hip pain, 

and related that appellant should continue his medium level of duty “avoiding prolonged standing 

and walking and no frequent walking or standing frequent position.”

On September 27, 2019 OWCP referred appellant along with a statement of accepted facts 

(SOAF) for a second opinion evaluation with Dr. Mitchell E. Antin, an osteopath specializing in

orthopedic surgery, to determine the status of his accepted employment-related conditions, and his 

current work restrictions. 

In an October 21, 2019 report, Dr. Antin noted appellant’s history of injury and medical

treatment. Appellant’s physical examination findings indicated that hislower extremities revealed 

overall symmetry, his thigh and calf measurements were the same on either leg, patellar reflexes 

were brisk and intact 2/4, no swelling or edema or deformities of the lower extremities, no 

complaints of ankle or foot pain, no weakness in dorsiflexion or plantar flexion, and normal 
3

sensation. Dr. Antin found that the right thigh had three prior surgical scars and tenderness around 

the greater trochanter. He found range of motion (ROM) around the right hip was intact and full, 

appellant had no complaint of pain during the examination, no complaint of low back pain , and 

the iliotibial appeared to have normal tension. Dr. Antin noted that x-rays from May 14, 2019 

revealed a satisfactory healed fracture without complication of the right femoral neck. He further 

noted that appellant was discharged from physical therapy and that Dr. Bergin did not provide any 

rationale as to why he continued appellant on medium level duty with avoidance of prolonged 

standing and walking. Dr. Antin opined that appellant had fully recovered and he advised that no 

further or ongoing medical care was warranted. 

In a December 30, 2019 report, Dr. Bergin related that appellant was seen for follow up. 

He related that appellant had a normal neurologic sensory and muscle strength examination. 

Dr. Bergin noted that appellant’s coordination was impaired for tandem walking, and heel toe 

walking, however, appellant had a normal gait. He again provided an assessment of gait 

abnormality, low back pain, and bilateral hip pain. Dr. Bergin recommended that appellant 

continue his medium level of duty and avoid prolonged standing, walking. He further 

recommended no frequent walking or standing, frequent position changes, and to take breaks as 

needed.

In a January 29, 2020 letter, OWCP requested that Dr. Bergin review Dr. Antin’s report

and provide an opinion with regard to whether he agreed or disagreed with Dr. Antin’s findings 

and conclusions. 

In a report dated April 30, 2020, Dr. Bergin noted that appellant was seen in follow up and 

that his symptomatology remained stable. He again diagnosed gait abnormality, back pain and 

bilateral hip pain. Dr. Bergin indicated that appellant should continue to work medium duty, 8 

hours per day, 5 days per week, for 40 hours, and avoid prolonged standing, no frequent walking, 

and frequent position changes and breaks as needed. 

On August 3, 2020 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits, as the evidence of record, as represented by Dr. Antin’s report,

established that he no longer had employment-related residuals or disability due to his accepted 

work-related conditions. It afforded him 30 days to submit additional evidence or argument in 

writing, if he disagreed with the proposed termination of benefits. 

In an August 14, 2020 letter, appellant disagreed with the proposal to terminate his benefits. 

He argued that Dr. Antin was inaccurate in his examination and that his physician, Dr. Bergin,

provided current documentation regarding his ability to work. Appellant argued that he only 

returned to work for one week in May, and then experienced complications from his injury. 

By decision dated September 23, 2020, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective October 11, 2020. It found that the weight of the 

medical evidence rested with Dr. Antin’s opinion that appellant did not have disability or residuals 

due to the employment injury. 

In a September 24, 2020 letter, appellant disagreed with the termination and noted that his 

physician, Dr. Bergin, informed him that returning to work without restrictions would cause his 
4

right leg to stiffen up and cause pain. OWCP also received an August 31, 2020 report from

Dr. Bergin, essentially repeating his prior findings and conclusions.

On September 30, 2020 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

January 15, 2021. 

In an October 7, 2020 report, Dr. Vincent E. Vena, a Board-certified orthopedic surgeon, 

noted appellant’s history of injury and medical treatment. He explained that appellant had an 

intertrochanteric hip fracture from a stress fracture that displaced and that underwent internal 

fixation in the summer of 2017, eventually having hardware removal. Dr. Vena related that 

appellant’s recent release to return to work apparently prompted his visit and noted that appellant

described pain that affected his sleep and groin pain radiating to his thigh that limited his steps, 

and that extended activity aggravated his problems. He examined appellant and noted that 

appellant had “an extreme amount of apprehension and guarding” on both sides, his leg lengths 

were equal, and with distraction had “quite excellent range of motion.” Dr. Vena noted 80 degrees 

of abduction, full extension, straight leg raise seemed to aggravate him, and his examination was 

benign. He diagnosed chronic right hip pain. Dr. Vena opined, “I have difficulty supporting all 

the patient’s subjective complaints with objective findings. I think he is stricken by a little anxiety 

and apprehension and likely worried about doing regular duties.” He noted that he would order a 

magnetic resonance imaging (MRI) scan, however, if the scan was unremarkable, he would

recommend that appellant return to work without restrictions. Dr. Vena also noted that appellant 

might consider other work if his walking duties as a mail carrier did not agree with him. 

Dr. Bergin submitted a January 12, 2021 follow-up report and repeated his prior findings 

and conclusions. In a January 14, 2021 narrative report, he noted appellant’s history of injury and 

treatment and explained that appellant had pain aggravated by climbing stairs, general physical 

activity, prolonged standing, sitting, squatting, straining, walking, and work duties. Dr. Bergin

diagnosed gait abnormality, bilateral hip pain with a history of surgical fixation of a hairline stress 

fracture of the right hip, status post subsequent removal of hardware, low back pain, muscle 

spasms, and paresthesia. He explained that appellant was cleared to work at medium duty 8 hours

per day, 5 days per week, 40 hours per week and that appellant attempted to return to work, but he 

was required to perform above and beyond his work restrictions. Dr. Bergin explained that 

appellant was on medication and “would continue to need lifelong modified adapted work status.”

He also advised that appellant was at increased risk for developing osteoarthritis of the hip, back,

and knee as a long-term sequela result of repetitive activity as a mail carrier, which continued to 

cause a break down in the joint. 

By decision dated March 31, 2021, OWCP’s hearing representative affirmed the 

September 23, 2020 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 an employee’s benefits.4 It may not terminate compensation 

4

See J.T., Docket No. 20-1470 (issued October 8, 2021); C.C., Docket No. 19-1062 (issued February 5, 2020); 

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); PaulL. Stewart, 54 ECAB 824 (2003).
5

without establishing that the disability had ceased or that it was 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

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

entitlement for disability compensation.7 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.8

ANALYSIS -- ISSUE 1

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

compensation and medical benefits, effective October 11, 2020, as he no longer had disability or 

residuals due to his accepted July 13, 2017 employment injury.

OWCP referred appellant to Dr. Antin for a second opinion evaluation to determine the 

status of appellant’s accepted condition and his work capacity. In an October 21, 2019 report,

Dr. Antin noted that he examined appellant and that his May 14, 2019 x-rays revealed a 

satisfactory healed fracture without complication of the right femoral neck. He opined that 

appellant had fully recovered, that no further or ongoing medical care was warranted, that appellant 

did not have any residuals of the accepted conditions, and that appellant was able to return to his

full-time regular duties with no restrictions.

The Board finds that OWCP properly determined that Dr. Antin’s opinion constitutes the 

weight of the medical opinion evidence. Dr. Antin based his opinion on a proper factual and 

medical history and physical examination findings and provided medical rationale for his opinion 

that appellant did not have a current residual injury. He noted that examination findings were 

normal with no objective findings to indicate any residuals of the accepted conditions. The Board 

finds that Dr. Antin provided a well-rationalized opinion based on medical evidence regarding 

appellant’s employment injury residuals and disability. Accordingly, OWCP properly relied on 

his second opinion report in terminating appellant’s wage-loss compensation and medical benefits 

for the July 13, 2017 employment injury.9

OWCP continued to receive follow-up reports from Dr. Bergin. In December 30, 2019 and 

April 30, 2020 reports, Dr. Bergin related that appellant had a normal neurologic sensory and 

muscle strength examination, as well as normal gait. He again provided an assessment of gait 

abnormality, low back pain, and bilateral hip pain. The Board consistently has held that pain is a 

5

See T.M., Docket No. 19-1058 (issued March 30, 2021); G.T., Docket No. 18-01302 (issued October 22, 2019); 

A.G., Docket No. 18-0749 (issued November 7, 2018); ElsieL. Price, 54 ECAB 734 (2003).

6 R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

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

8

See T.M., supra note 5; A.M., Docket No. 18-1243 (issued October 7, 2019); R.P., Docket No. 17-1133 (issued 

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

9

See C.C., supra note 4; S.M., Docket No. 18-0673 (issued January 25, 2019); see also A.F., Docket No. 16-0393 

(issued June 24, 2016).
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symptom and not a compensable medical diagnosis.10 The Board further notes that while

Dr. Bergin provided an assessment of gait derangement, he also noted that appellant’s gait was 

normal. Further, while Dr. Bergin indicated that appellant should continue his medium level of 

duty and avoid prolonged standing, walking, no frequent walking or standing, frequent position 

changes, and breaks as needed, he provided no objective finding to substantiate these restrictions.

As he did not explain why appellant’s accepted condition caused residuals or disability, these 

reports are insufficient to overcome the weight of the medical evidence accorded to Dr. Antin, or 

to create a conflict in medical opinion as to whether appellant’s condition had resolved.11

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.12 To establish causal relationship between the condition as well as any 

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

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

relationship.13

ANALYSIS -- ISSUE 2

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

employment-related disability or residuals or after October 11, 2020.

Subsequent to the termination of benefits, OWCP received August 31, 2020 and 

January 12, 2021 reports from Dr. Bergin in which he repeated his prior findings and conclusions. 

In a January 14, 2021 narrative report, Dr. Bergin reiterated appellant’s diagnosis and noted that 

appellant was on meloxicam and opined that appellant “would continue to need lifelong modified 

adapted work status.” He further advised that appellant was at increased risk for developing 

osteoarthritis of the hip, back, and knee as a long-term sequela result of repetitive activity as a mail 

carrier. However, the Board has long held that medical limitations based solely on the fear of a 

possible future injury are also insufficient to support payment of compensation. 14 While

Dr. Bergin continued to provide an opinion that appellant was unable to return to regular work, his 

opinion was conclusory.

15

 The reports from Dr. Bergin are, therefore, of diminished probative 

value to establish appellant’s entitlement to continued wage-loss compensation and medical 

benefits.16

10 A.G., Docket No. 20-1319 (issued May 19, 2021); T.S., Docket No. 20-0343 (issued July 15, 2020).

11 K.R., Docket No. 21-0152 (issued February 16, 2022). 

12 See L.S., Docket No. 20-1204 (issued October 4, 2021); S.M., supra note 9.

13 Id.

14 W.S.,Docket No. 21-0257 (issued February 22, 2022). 

15 See J.T., supra note 4; A.T., Docket No. 20-0334 (issued October 8, 2020).

16 See R.R., supra note 6; O.W., Docket No. 17-1881 (issued May 1, 2018).
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OWCP also received an October 7, 2020 report from Dr. Vena who related that appellant 

had an intertrochanteric hip fracture and underwent internal fixation in the summer of 2017 and 

eventual hardware removal. Dr. Vena examined appellant and noted that he had “an extreme 

amount of apprehension and guarding” on both sides and that, with distraction, appellant had 

“quite excellent range of motion.” He explained, “I have difficulty supporting all the patient’s 

subjective complaints with objective findings. I think he is stricken by a little anxiety and 

apprehension and likely worried about doing regular duties.” Dr. Vena indicated that he would 

request an MRI scan and that if the MRI scan results were unremarkable, appellant would be able 

to return to unrestricted work. However, he did not address whether appellant had continuing 

disability or residuals causally related to the accepted employment injury. 17 This report is therefore 

of no probative value and is insufficient to establish that appellant had continuing residuals or 

disability on or after October 11, 2020. 

Appellant has not submitted rationalized medical evidence sufficient to establish 

continuing disability or residuals causally related to the accepted July 13, 2017 employment injury 

on or after October 11, 2020. Accordingly, the Board finds that he has not met his burden of 

proof.18

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 and medical benefits, effective October 11, 2020, as he no longer had disability or 

residuals due to his accepted July 13, 2017 employment injury. The Board further finds that 

appellant has not met his burden of proof to establish continuing employment-related disability or 

residuals on or after October 11, 2020, causally related to his accepted July 13, 2017 employment 

injury.

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

18 R.C., Docket No. 19-0376 (issued July 15, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the March 3, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 2, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board