A.E. and U.S. Postal Service, La Puente Post Office (Board decision, December 14, 2023)

ECAB final decision with remand. The Board reversed OWCP's termination of wage loss and medical benefits effective October 11, 2019, and returned the disputed additional diagnoses for impartial medical review. The scope of the accepted injury remains unresolved. 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).

Plain-English summary

A postal mail carrier was struck by a vehicle at work, and OWCP accepted several contusions and sprains before terminating her benefits in 2019. Her treating physician and OWCP's examiner disagreed about continuing residuals and whether the claim should include shoulder and lumbar conditions. The Board held that OWCP could not terminate wage loss and medical benefits while those medical conflicts remained unresolved, so it reversed the termination. It also returned the claim expansion issue for an impartial medical examination. The Board did not decide whether the additional diagnoses were work related.

Decision snapshot

• Authority: 5 U.S.C. § 8123(a), impartial examination for conflicting medical opinions.
• Outcome: Benefits termination reversed; claim expansion remanded.
• Key point: OWCP had to resolve opposing medical opinions before ending accepted benefits or rejecting additional conditions.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.E., Appellant
)
)
and ) Docket No. 23-0756
)
Issued: December 14, 2023
U.S. POSTAL SERVICE, La PUENTE POST )
OFFICE, La Puente, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Brett E. Blumstein, 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 1, 2023 appellant, through counsel, filed a timely appeal from a March 30, 2023 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 March 30, 2023 decision, appellant submitted additional evidence on appeal to the Board. 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.
ISSUES

The issues are: (1) whether appellant has met her burden of proof to expand the acceptance of her claim to include aggravation of left shoulder tendinopathy, permanent aggravation of multiple disc herniations, and lumbar radiculopathy; (2) whether OWCP has met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective October 11, 2019, as she no longer had disability or residuals causally related to h er accepted June 1, 2016 employment injury; and (3) whether appellant has established that she had continuing disability or residuals on or after October 11, 2019, causally related to her accepted June 1, 2016 employment injury.

FACTUAL HISTORY

On June 3, 2016 appellant, then a 42-year-old mail carrier, filed a traumatic injury claim (Form CA-1) alleging that on June 1, 2016 she sustained a contusion/strain to the back and buttocks when she was struck by a vehicle while in the performance of duty. She stopped work that same day. OWCP accepted the claim for contusions of the right hip, right upper arm, lower back, and pelvis; lumbar spine ligament sprain; and strain of muscle, fascia and tendon at neck level. Appellant returned to part-time light duty on July 29, 2016. OWCP paid her wage-loss compensation on the supplemental rolls effective July 17, 2016.

In a November 10, 2016 report, Dr. Basimah Khulusi, Board-certified in physiatrist, noted the accepted diagnoses. She requested that OWCP add aggravation of left shoulder tendinopathy to appellant’s accepted conditions. Dr. Khulusi explained that within five days of the work injury on June 6, 2016 appellant complained of left shoulder pain. She noted that a July 6, 2016 left shoulder magnetic resonance imaging (MRI) scan revealed a supraspinatus tendinopathy with bursal surface fraying and a small obliquely-oriented bursal surface tear and acromioclavicular (AC) joint arthropathy with downsloping of the acromion and subacromial bursitis. Dr. Khulusi explained that the sudden tightening of appellant’s muscles when appellant was hit by the car resulted in the impingement of the structures of her left shoulder, with the downsloping acromion digging deeper in the supraspinatus tendon and bursa, resulting in irritation of these structures and causing pain. She indicated that this supported appellant’s request to add the diagnosis of aggravation of left shoulder tendinopathy to her already accepted conditions.

Dr. Khulusi also requested that OWCP expand the acceptance of the claim to include multiple lumbar disc herniations and lumbar radiculopathies. She noted that a July 6, 2016 MRI scan of the low back revealed left posterolateral/foraminal disc herniation at L3-4 measuring approximately 6 to 7 millimeter (mm), moderate-to-severe narrowing of the left neural foramen, and impression on the left foraminal and far lateral segments of the left L3 nerve root with flattening of the nerve root. Dr. Khulusi also found broad-based right posterolateral foraminal disc herniation at L4-5 measuring 3 to 4 mm with annular fissuring and moderate narrowing of the caudal margin of the right neural foramen and impression on the right far lateral segment of the right L4 nerve root at the external orifice of the right L4 neural foramen, disc bulge at L5-S1 measuring 2 mm; posteriorly directed synovial cyst extending from the right L5-S1 facet joint measuring 3 mm and straightening of the lumbar spine lordosis. She explained that, when appellant was hit by the car on June 1, 2016, the left side of her body was hit lateral to her lumbar spine and the reaction of her body was to have a sudden contraction of the muscles to protect the body that resulted in lumbar sprain. Dr. Khulusi defined sprain as stretching or tearing of the

2 ligaments that results from wrenching and twisting of the ligaments and noted that there could be varying degrees of sprain. She noted that, in appellant’s case, the spraining of the ligaments of her low back resulted in increased pressure on the intradiscal space and significant displacement of the discs at the L3-4 and L4-5 levels as shown on the MRI scan. Dr. Khulusi opined that the displacement of the discs resulted in compromising the space for the lumbar nerve roots and lumbar radiculopathy and requested acceptance of her above-noted additional diagnoses.

In an August 1, 2017 report, Dr. Charles Herring, Board-certified in orthopedic sports medicine, opined that appellant reached maximum medical improvement (MMI). He noted her medical treatment plan and her continued work restrictions.

In a September 26, 2018 report, Dr. Khulusi opined that appellant continued to suffer from residuals of her work injury, which were permanent and limited her work to six hours per day. She diagnosed right hip contusion, right upper arm contusion, low back and pelvis contusion , lumbar spine ligament sprain, muscle fascia and tendon strain, neck sprain, multilevel cervical herniations, multiple significant lumbar disc herniations, and aggravation of left shoulder tendinopathy.

On December 14, 2018 OWCP referred appellant for a second opinion evaluation with Dr. Michael J. Einbund, a Board-certified orthopedic surgeon, to determine whether she had residuals from the accepted conditions and to provide an opinion regarding her disability status.

In a January 8, 2019 report, Dr. Einbund noted appellant’s history of injury and course of medical treatment. He determined that her physical examination findings and x-rays of the cervical spine, right shoulder, pelvis, and lumbosacral spine revealed no evidence of fracture, dislocation, or degenerative changes. Dr. Einbund opined that appellant had no residuals of the accepted right arm contusion, low back contusion, right hip contusion, and sprains of the lumbar spine and neck. He explained that the only residuals that she had related to preexisting, underlying findings for the cervical spine and lumbar spine, as MRI scans of the respective areas revealed evidence of multilevel disc bulges in the cervical and lumbar spine which were not traumatic in nature. Dr. Einbund noted some discrepancy regarding the right hip contusion, as the record revealed treatment to the left hip; however, his examination of both hips was within normal limits and that there were no residuals for either hip. He noted that the July 6, 2016 MRI scan of appellant’s left shoulder revealed evidence of supraspinatus tendinopathy with bursal surface fraying and small obliquely-oriented bursitis surface tear extending proximally, and AC joint arthropathy and subacromial bursitis. Dr. Einbund explained that her subjective complaints exceeded the objective findings as they related to the neck, right shoulder/arm, and hips; the MRI scan and examination of the cervical spine was normal; and that there were no objective findings for the right shoulder/arm or for either of the hips to support appellant’s ongoing symptoms. He noted preexisting underlying multi-level disc bulges involving the lumbar spine, most significant at L3-4 measuring 6 to 7 mm involving the left L3 nerve root and at L4-5 measuring 3 to 4 mm involving the right L4 nerve root. Dr. Einbund also noted that an August 21, 2016 electromyography scan revealed high possibility of left L5 and L4 radiculopathy and opined that he would support appellant’s subjective complaints. He explained that her preexisting conditions were the underlying multilevel disc bulges involving the cervical and lumbar spine. Dr. Einbund opined that appellant reached MMI on or about August 2017, as indicated by her treating physician, Dr. Herring. He advised that no further treatment was warranted for any of the accepted conditions. Dr. Einbund noted that appellant had permanent physical limitations due to her

3 underlying preexisting lumbar spine condition, but she was capable of working eight hours per day with restrictions.

On February 26, 2019 OWCP advised appellant that it proposed to terminate her wage-loss compensation and medical benefits, as she no longer had residuals or disability causally related to her accepted June 1, 2016 employment injury. It informed her that the weight of the medical opinion evidence rested with the January 8, 2019 report from Dr. Einbund and afforded her 30 days to submit evidence and argument challenging the proposed action.

In a March 7, 2019 report, Dr. Khulusi reviewed Dr. Einbund’s report and argued that it was not well reasoned because he indicated that appellant had permanent restrictions based upon preexisting conditions, but did not explain why appellant did not require restrictions prior to the June 1, 2016 employment injury. She noted that on November 10, 2016 appellant requested that the acceptance of her claim be expanded to include permanent aggravation of multiple disc herniations and lumbar radiculopathy. Dr. Khulusi argued that OWCP failed to develop the claim regarding appellant’s request to include additional diagnoses and that the work restrictions provided by Dr. Einbund showed that appellant’s condition was worse than originally determined. She provided a copy of the November 10, 2016 request to expand the claim.

In a March 25, 2019 treatment note, Dr. Khulusi repeated her prior diagnoses, which included the nonaccepted conditions of neck sprain, multiple small cervical herniations, multiple significant lumbar herniations, and aggravation of left shoulder tendinopathy. She also provided a September 23, 2019 duty status report (Form CA-17) advising that appellant remained disabled from work due to her low back conditions and that she reached MMI on September 16, 2018 with permanent restrictions of no more than six hours of work per day.

By decision dated October 11, 2019, OWCP terminated appellant’s wage-loss compensation and medical benefits, effective that date. It found that the weight of the medical evidence rested with the January 12, 2021 report of Dr. Einbund, the second opinion physician.

On September 8, 2020 appellant, through counsel, requested reconsideration and submitted additional medical evidence from Dr. Khulusi.

OWCP received a November 11, 2019 progress report from Dr. Khulusi repeating her prior diagnoses and opinion that appellant remained disabled from work due to her low back conditions.

In an August 26, 2020 report, Dr. Khulusi argued that Dr. Einbund and OWCP were biased and ignored the previously-submitted medical chart notes, which indicated that appellant continued to suffer residuals of her June 1, 2016 work injury. She further argued that there was a conflict in the medical evidence that warranted referral to an impartial medical examiner (IME).

By decision dated December 7, 2020, OWCP denied modification of the October 11, 2019 decision.

On December 6, 2021 appellant, through counsel, requested reconsideration and submitted additional evidence.

In a November 16, 2021 report, Dr. John B. Dorsey, a Board-certified orthopedic surgeon, noted appellant’s history of injury and medical treatment. He opined that she continued to suffer

4 residuals of disc herniation and radiculopathy in the left lower back extending into the left hip primarily. Dr. Dorsey noted objective findings of tenderness and pain at the extremes of motion of the neck; tenderness at L3-S1 bilaterally and muscle spasm at L3-S1 on the left; significant limitation of range of motion with pain at the extremes of motion; positive straight leg raising on the left; a great deal of pain getting on and off the examination table and an abnormal MRI scan showing evidence of very large disc herniations at L3-4; a moderately large herniation at L4-5 on the left; and a minimal-to-mild herniation at L5- S1. He opined that the disc protrusions and ligamentous changes began prior to the June 6, 2016 work injury and occurred as a result of continuous trauma over a period of years while working as a mail carrier since 2003. Dr. Dorsey related that appellant originally had a contusion of the right hip, but that her hip condition majored currently related to the radiculopathy at L3-4 which caused pain extending into the hip and thigh on the left side. He also noted that she no longer described any significant difficulties in the neck, just some minor pain; no difficulties in the shoulders whatsoever; and no significant symptomatology in the right hip, which was initially a contusion. Dr. Dorsey noted that the objective findings related to the low back and left hip and that the MRI scan showed significant disc herniations at L3-4 and at L4-5, and the electromyogram was abnormal showing L4-5 radiculopathy on the left. He opined that it was impossible to define what is meant by preexisting disability and that appellant very likely had some preexisting pathology involving her back, although there were no significant arthritic changes in the back or hip. Dr. Dorsey further opined that the primary problem was the work injury, otherwise, at the time the MRI scans were taken, there would have been evidence of degenerative changes. He noted that he based his opinion on the fact that appellant was able to perform her regular work prior to the work injury on June 1, 2016 but after that injury, she was limited to lifting up to 20 pounds only six hours per day. Dr. Dorsey also noted that her treating physician, Dr. Herring, determined that she had to continue with modified work. He further opined that further treatment would improve appellant’s condition over time.

By decision dated January 11, 2022, OWCP denied modification of the December 7, 2020 decision.

On January 10, 2023 appellant, through counsel, requested reconsideration. Counsel argued that the medical evidence provided by appellant was rationalized, that she was not required to prove causality beyond all reasonable doubt, and that she suffered residuals of the accepted work-related conditions.

By decision dated March 30, 2023, OWCP denied modification of the January 11, 2022 decision.

LEGAL PRECEDENT -- ISSUE 1

When an employee claims that, a condition not accepted or approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury. 4

4
See S.J., Docket No. 22-0936 (issued April 27, 2023); D.T., Docket No. 20-0234 (issued January 8, 2021); see also T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

5
To establish causal relationship, the employee must submit rationalized medical opinion evidence.5 The opinion of the physician must be based on a complete factual and medical background of the claimant, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the accepted employment injury. 6 The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the care of analysis manifested, and the medical rationale expressed in support of the physician’s opinion. 7

Section 8123(a) of FECA provides, in pertinent part, if there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician (known as a referee physician or IME) who shall make an examination. 8 When there are opposing reports of virtually equal weight and rationale, the case must be referred to an IME, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 9

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision .

OWCP accepted that appellant sustained contusions of the right hip, right upper arm, lower back and pelvis, lumbar spine ligament sprain, and strain of muscle, fascia , and tendon at neck level. However, in a November 10, 2016 report, the treating physician, Dr. Khulusi requested expansion of the acceptance of appellant’s claim to include aggravation of left shoulder tendinopathy, as well as multiple lumbar disc herniations, and lumbar radiculopathy. She noted that within five days after the employment injury on June 6, 2016 appellant began complaining of left shoulder pain and an MRI scan on July 6, 2016 revealed a supraspinatus tendinopathy and with bursal surface fraying and a small obliquely oriented bursal surface tear and AC joint arthropathy with down sloping of the acromion and subacromial bursitis. Dr. Khulusi explained that the sudden tightening of appellant’s muscles when appellant was hit by the car resulted in impingement and irritation of the structures of her left shoulder and pain. She also requested that OWCP add additional diagnoses of low back conditions to include multiple disc herniations and lumbar radiculopathies. Dr. Khulusi noted that appellant was hit by the car on June 1, 2016 on the left side of her body, lateral to her lumbar spine, which caused a sudden contracture of the muscles, lumbar sprain, and significant displacement of the discs at the L3-4 and L4-5 as revealed on MRI scan report. She further explained that the displacement of the discs compromised the space for the lumbar nerve roots and caused lumbar radiculopathy.

5
D.T., id.; T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004). 6 D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
7
Id.
8
5 U.S.C. § 8123(a); G.S., Docket No. 20-0562 (issued June 23, 2022); D.G., Docket No. 19-1259 (issued January 29, 2020); M.S., 58 ECAB 238 (2007).
9
Id.; see also R.C., 58 ECAB 238 (2006); James P. Roberts, 31 ECAB 1010 (1980).

6
On December 14, 2018 OWCP referred appellant for a second opinion evaluation with Dr. Einbund. In a report dated January 8, 2019, Dr. Einbund opined that her multilevel disc bulges involving the cervical and lumbar spine were preexisting conditions not caused by the work injury. He explained that the MRI scans revealed multilevel disc bulges in the cervical and lumbar spine which were not traumatic in nature. Dr. Einbund noted that the July 6, 2016 MRI scan of appellant’s left shoulder revealed evidence of supraspinatus tendinopathy with bursal surface fraying and small obliquely-oriented bursitis surface tear extending proximally, and AC joint arthropathy and subacromial bursitis. He advised that her only residuals related to her preexisting and underlying conditions of cervical and lumbar spine.

The Board, therefore, finds that a conflict in medical opinion exists between Dr. Khulusi and Dr. Einbund with regard to whether the June 1, 2016 work injury caused additional conditions of aggravation of left shoulder tendinopathy, permanent aggravation of multiple disc herniations, and lumbar radiculopathy.10 OWCP’s regulations provide that, if a conflict exists between the medical opinion of the employee’s physician and the medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third physician to make an examination. 11

The case must, therefore, be remanded for OWCP to refer appellant to an IME to determine whether it should expand the acceptance of her claim to include aggravation of left shoulder tendinopathy, permanent aggravation of multiple disc herniations, and lumbar radiculopathy. 12 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision.

LEGAL PRECEDENT -- ISSUE 2

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify termination or modification of benefits.13 It may not terminate compensation without establishing either that the disability has ceased or that it is no longer related to the employment. 14 OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper factual and medical background. 15

10
S.N., Docket No. 19-1050 (issued July 31, 2020); D.S., Docket No. 20-0146 (issued June 11, 2020); W.B., Docket No. 17-1994 (issued June 8, 2018).
11
5 U.S.C. § 8123(a); S.N., id.; G.K., Docket No. 16-1119 (issued March 16, 2018).
12
S.J., supra note 4; S.F., Docket No. 20-1492 (issued August 17, 2022).
13
A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
14
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). 15 R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7
The right to medical benefits for an accepted condition is not limited to the period of entitlement for disability compensation. 16 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. 17

ANALYSIS -- ISSUE 2

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wage- loss and medical benefits, effective October 11, 2019.

As previously noted, a conflict of medical evidence existed between Dr. Khulusi and Dr. Einbund as to whether appellant’s claim should be expanded for acceptance of additional left shoulder, cervical and lumbar conditions causally related to the accepted injury, prior to the termination of appellant’s compensation benefits on October 11, 2019.

The Board notes that a conflict also existed in the medical opinion evidence as to whether appellant’s accepted conditions had resolved. In her September 26, 2018 report, Dr. Khulusi opined that appellant continued to suffer from residuals of her work injury, which were permanent and limited her work to six hours per day. She diagnosed right hip contusion, right upper arm contusion, low back and pelvis contusion, lumbar spine ligament sprain, muscle fascia and tendon strain, and neck sprain. However, Dr. Einbund in his report dated January 8, 2019 opined that appellant had no residuals of the accepted right arm contusion, low back contusion, right hip contusion, and sprain of the lumbar spine and neck. It is well established that, when there exist opposing medical reports of virtually equal weight and rationale, the case should be referred to an IME for the purpose of resolving the conflict.18 Therefore, OWCP has not met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits effective October 11, 2019 as it should have referred her to an impartial medical evaluation, pursuant to 5 U.S.C. § 8123(a), to resolve the conflict prior to a termination of wage-loss compensation and medical benefits. 19

CONCLUSION

The Board finds that the case is not in posture for decision regarding expansion of acceptance of the claim due to an unresolved conflict in the medical opinion evidence . The Board further finds that OWCP failed to meet its burden of proof to terminate appellant’s compensation benefits effective October 11, 2019.20

16
L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).
17
R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).
18
D.P., Docket No. 21-0534 (issued December 2, 2021); N.A., Docket No. 21-0542 (issued November 8, 2021);
G.B., Docket No. 16-0996 (issued September 14, 2016) (where the Board held that OWCP improperly terminated the claimant’s wage-loss compensation and medical benefits as there was an unresolved conflict of medical opinion between her treating physician and a second opinion physician. 19 Id.
20
In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

8
ORDER

IT IS HEREBY ORDERED THAT the March 20, 2023 decision of the Office of Workers’ Compensation Programs is set aside in part and reversed in part. The case is remanded for further proceedings consistent with this decision of the Board.

Issued: December 14, 2023
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

9