J.B. and U.S. Postal Service, Bowie Main Post Office (Board decision, March 5, 2024)

ECAB final decision. The Board affirmed OWCP’s decision. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

OWCP ended a postal employee’s wage-loss and medical benefits after an accepted lower-back strain. The Board found that a reasoned second opinion examination supported the conclusion that the strain had resolved and that she could resume her date-of-injury job without restrictions. It affirmed the termination.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Wage-loss and medical benefit termination affirmed.
• Key point: The second opinion found no continuing residuals of the accepted strain.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.B., Appellant
)
)
and ) Docket No. 23-0319
) Issued: March 5, 2024
U.S. POSTAL SERVICE, BOWIE MAIN POST
)
OFFICE, Bowie, MD, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 28, 2022 appellant filed a timely appeal from a November 18, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1
Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). Appellant did not provide reasons in support of her request for oral argument. The Board, in exercising its discretion, denies her request for oral argument as her case can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as submitted to the Board. 2 5 U.S.C. § 8101 et seq.
3
The Board notes that, following the November 18, 2022 decision, appellant submitted additional evidence to OWCP. 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. ISSUE

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective November 18, 2022, as she no longer had disability or residuals causally related to her accepted October 18, 2021 employment injury.

FACTUAL HISTORY

On October 21, 2021 appellant, then a 30-year-old rural letter carrier, filed a traumatic injury claim (Form CA-1) alleging that on October 18, 2021 she sustained sharp pain in the middle of her back when she bent over to lift a tray of letter mail while in the performance of duty. She stopped work on October 18, 2021. By decision dated November 24, 2011, OWCP accepted the claim for strain of muscle, fascia, and tendon of lower back. It paid appellant wage-loss compensation on the supplemental rolls, effective December 3, 2021, and on the periodic rolls, effective March 27, 2022.

In a January 19, 2022 report, Dr. Nicholette Martin, a Board-certified physiatrist diagnosed degenerative disc disease with an annular tear and lumbar disc protrusion, based on a lumbar magnetic resonance imaging scan. She referred appellant to a pain management specialist for treatment of the diagnosed conditions. Dr. Martin renewed appellant’s work restrictions in reports dated through February 16, 2022.

In a March 8, 2022 report, Dr. Carey-Walter Closson, Board-certified in interventional pain management, recounted a history of the October 18, 2021 employment injury and subsequent treatment. On examination, he observed limited lumbar range of motion with bilateral posterior superior iliac spine tenderness to palpation. Dr. Closson diagnosed intervertebral disc degeneration and prescribed a lumbar brace. He ordered intra-articular injections.

OWCP received additional reports by Dr. Martin dated March 16 through July 13, 2022, wherein she opined that appellant’s condition unchanged and renewed the previous work restrictions. Dr. Martin noted that OWCP had not yet approved the epidural injections directed by Dr. Closson.

On August 17, 2022 OWCP referred appellant, the medical record, a statement of accepted facts (SOAF), and a series of questions to Dr. John C. Barry, a Board-certified orthopedic surgeon, for a second opinion regarding the nature and extent of her accepted conditions and work capacity.

In a September 8, 2022 report, Dr. Barry noted his review of the medical record and the SOAF. On physical examination, he observed limited range of lumbar motion; an equivocally positive right straight leg raising test; and no paraspinal, midline, or sciatic notch tenderness. Dr. Barry opined that the accepted condition had ceased and that there was no need for further medical treatment. He completed a work capacity evaluation (Form OWCP-5c) indicating that appellant had attained maximum medical improvement and could return to work at her date-of- injury position without restrictions.

Thereafter, OWCP received a September 7, 2022 report by Dr. Martin, diagnosing a lumbar strain with acute lumbar radiculopathy. Dr. Martin found appellant’s condition unchanged and renewed previous work restrictions.

2
 On September 26, 2022 OWCP issued a notice proposing to terminate appellant’s wage- loss compensation and medical benefits as she no longer had disability or residuals due to her accepted October 18, 2021 employment injury. It afforded her 30 days to submit additional evidence or argument if she disagreed with the proposed termination of benefits.

Thereafter, OWCP received preprocedural instructions for intra-articular injections from the office of Dr. Juan C. Rodriguez-Alfonso, a Board-certified physiatrist, and an October 24, 2022 letter by Michelle Pipta, a physician assistant, noting that appellant had been seen that day and must remain on light duty through November 21, 2022.

By decision dated November 18, 2022, OWCP finalized the termination of appellant’s wage-loss compensation and medical benefits, effective that date. It found that the weight of the medical evidence rested with Dr. Barry’s opinion that she no longer had disability or residuals due to the accepted October 18, 2021 employment injury.

LEGAL PRECEDENT

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, OWCP may 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

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

ANALYSIS

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective November 18, 2022, as she no longer had disability or residuals due to her accepted October 18, 2021 employment injury.

In a report dated September 8, 2022, Dr. Barry, OWCP’s second-opinion examiner, noted his review of the SOAF and appellant’s accepted condition of strain of muscle, fascia, and tendon of the lower back. He provided examination findings of limited range of lumbar motion, and an equivocally positive right straight leg raising test. Dr. Barry opined that the accepted lumbar

4
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
A.V., Docket No. 23-0230 (issued July 28, 2023); L.K., Docket No. 20-0443 (issued August 8, 2023); C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018). 7 L.W., Docket No. 18-1372 (issued February 27, 2019).
8
A.V., supra note 6; L.K., supra note 6; R.P., Docket No. 18-0900 (issued February 5, 2019).

3 condition had resolved. He explained that there was no objective evidence of a lumbar strain and no findings to support an ongoing disabling condition. Dr. Barry concluded that appellant had no disabling condition causally related to the accepted October 18, 2021 employment injury, and completed a Form OWCP-5c indicating that she was capable of returning to her date-of-injury job with no restrictions.

The Board has reviewed the opinion of Dr. Barry and finds that it has reliability, probative value, and convincing quality with respect to the relevant issue of continuing work-related disability and residuals.9 The Board finds, therefore, that the weight of the medical evidence is represented by the thorough, well-rationalized opinion of Dr. Barry, OWCP’s referral physician.

As the medical evidence of record is sufficient to establish that appellant no longer had disability or residuals due the accepted October 18, 2021 employment injury, the Board finds that OWCP met its burden of proof.

CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective November 18, 2022, as she no longer had disability or residuals due to her accepted October 18, 2021 employment injury.

9
A.M., Docket No. 22-0300 (issued April 10, 2023).

4
 ORDER

IT IS HEREBY ORDERED THAT the November 18, 2022 decision of the Office of Worker’s Compensation Programs is affirmed.

Issued: March 5, 2024
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

5