United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.F., Appellant

and

U.S. POSTAL SERVICE, BETHPAGE 

PROCESSING & DISTRIBUTION CENTER, 

Bethpage, NY, Employer

__________________________________________

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Docket No. 21-1338

Issued: September 19, 2022

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On September 6, 2021 appellant, through counsel, filed a timely appeal from a May 28, 

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 The Board notes that, following the May 28, 2021 decision, appellant submitted additional evidence to OWCP. 

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

wage-loss compensation and medical benefits, effective April 15, 2020, as she no longer had 

disability or residuals causally related to her accepted employment conditions; and (2) whether 

appellant has met her burden of proof to establish continuing disability or residuals on or after 

April 15, 2020 causally related to her accepted June 28, 2018 employment injury.

FACTUAL HISTORY

OWCP accepted that on June 28, 2018 appellant, then a 41-year-old mail handler, sustained 

post-concussional syndrome; strain of muscle, fascia, and tendon at the neck level; and posttraumatic headache and vertigo when she was struck in the forehead by a pallet while in the 

performance of duty. It assigned OWCP File No. xxxxxx834 and paid wage-loss compensation 

for periods of disability.4

In a report dated April 22, 2019, Dr. Steven Ender, a Board-certified neurologist serving 

as an OWCP referral physician, determined that appellant ceased to have residuals of her accepted 

June 28, 2018 employment injury. In contrast, Dr. Itzhak Haimovic, an attending Board-certified 

neurologist, opined in several reports, including a report dated May 2, 2019, that appellant 

continued to have disability and residuals related to her accepted June 28, 2018 employment 

injury. 

In order to resolve the conflict in the medical opinion evidence, OWCP referred appellant 

to Dr. Shafi Wani, a Board-certified psychiatrist and neurologist, for an impartial medical 

examination and evaluation regarding whether appellant had residuals and disability related to any 

of her accepted employment injuries. In November 12, 2019 and January 19, 2020 reports,

Dr. Wani, the impartial medical examiner (IME), determined that appellant had no work-related 

residuals/disability.

On February 26, 2020 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits, finding that appellant no longer had any disability or 

residuals from work due to her accepted employment injury. It afforded her 30 days to submit 

additional evidence or argument.

By decision dated April 14, 2020, OWCPfinalized the proposed termination of appellant’s 

wage-loss compensation and medical benefits, effective April 15, 2020. It accorded the special 

weight of the medical evidence to the opinion of IME, Dr. Wani.

Appellant requested reconsideration and submitted additional medical evidence. By 

decision dated May 28, 2021, OWCP denied modification of the April 14, 2020 termination 

decision. 

4 Under a separate claim, assigned OWCP File No. xxxxxx254, appellant claimed that she sustained a head injury 

when a box fell on her forehead on June 2, 2015. OWCP administratively authorized payment of medical expenses, 

but formally denied the claim on January 7, 2016. Under another separate claim, assigned OWCP File No. xxxxxx920, 

it accepted that on September 18, 2017 appellant sustained a cervical strain. These claims have not been 

administratively combined.
3

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.5 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.6 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.7

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 April 15, 2020.

In support of its decision to terminate appellant’s wage-loss compensation and medical 

benefits effective April 15, 2020, OWCP specifically referenced medical evidence obtained from 

earlier claims regarding accepted conditions of similar parts of the body, OWCP File Nos. 

xxxxxx254 and xxxxxx920. Under its procedures, OWCP has determined that cases should be 

administratively combined where a new injury case is reported for an employee who previously 

filed an injury claim for the same part of the body and where correct adjudication depends on 

cross-referencing between files.8 OWCP’s procedures further provide that cases should be 

administratively combined when correct adjudication of the issues depends on frequent crossreferencing between files.9

 OWCP relied on the opinion of Dr. Wani in justifying its termination 

action, but it has not administratively combined the case records from OWCP File Nos. xxxxxx254 

and xxxxxx920 with the case record for the present claim, OWCP File No. xxxxxx834, or 

incorporated the relevant evidence from those files concerning appellant’s neck/head conditions 

into the current case record.

As noted above, once OWCP accepts a claim and pays compensation, it has the burden of 

proof to justify termination or modification of an employee’s benefits.10 As OWCP did not 

administratively combine the files prior to the termination, it failed to meet its burden of proof.11

5 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).

6

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).

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

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c(1) 

(February2000); V.G., Docket No. 19-0670 (issued April30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued 

June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867, 17-1868 (issued April18, 2018); W.S., Docket No. 15-0969 

(issued October 5, 2015); C.C., Docket No. 14-1576 (issued March 9, 2015).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c 

(February2000).

10 See supra note 5.

11 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
4

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 15, 2020.

ORDER

IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: September 19, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board