D.F. and Department of the Navy, Naval Submarine Base Kings Bay (Board decision, March 27, 2024)

ECAB final decision. The Board affirmed OWCP’s termination of wage loss and medical benefits from April 4, 2022. 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

A Navy worker received benefits for an accepted 1997 back injury. OWCP’s referral physician concluded that the accepted conditions had resolved and that current complaints lacked supporting objective findings. The Board found his reasoned opinion sufficient to end benefits. Later medical reports did not adequately link continuing disability or residuals to the accepted injury, so the Board also rejected the worker’s claim after termination.

Decision snapshot

• Authority: FECA burden to terminate accepted benefits and proof of continuing residuals.
• Outcome: September 1, 2023 decision affirmed.
• Key point: A reasoned second opinion can establish resolution of accepted conditions, shifting the burden to prove later residuals.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.F., Appellant
)
)
and ) Docket No. 23-1182
) Issued: March 27, 2024
DEPARTMENT OF THE NAVY, NAVAL
)
SUBMARINE BASE, Kings Bay, GA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 20, 2023 appellant, through counsel, filed a timely appeal from a September 1, 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.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wage- loss compensation and medical benefits, effective April 4, 2022, as he no longer had disability or residuals causally related to his accepted December 3, 1997 employment injury; and (2) whether

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. appellant has met his burden of proof to establish continuing employment-related disability or residuals, on or after April 4, 2022, due to his accepted December 3, 1997 employment injury.

FACTUAL HISTORY

This case has previously been before the Board regarding a different issue.3 The facts and circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On December 5, 1997 appellant, then a 38-year-old ordnance equipment worker, filed a traumatic injury claim (Form CA-1) alleging that on December 3, 1997 he twisted his back and sustained back, left hip and leg pain when he lost his footing while climbing up a spiral staircase out of a submarine. OWCP accepted the claim for lumbar strain and aggravation of L3-4 and L4-5 herniated nucleus pulposus. The record reflects that OWCP paid appellant compensation on the periodic rolls effective June 16, 2002.

By decision dated October 8, 2002, OWCP reduced appellant’s wage-loss compensation, effective November 3, 2002, based on its finding that he had the capacity to earn wages in the constructed position of computer technical support specialist.

On September 1, 2021 OWCP referred appellant, together with the case record, and a statement of accepted facts (SOAF) to Dr. Scott W. Knorpp, a Board-certified physiatrist, for a second opinion examination. It requested that Dr. Knorpp provide an opinion regarding whether appellant continued to have residuals or disability causally related to his accepted December 3, 1997 employment injury.

In a report dated September 28, 2021, Dr. Knorpp discussed appellant’s history of injury and medical treatment. He briefly summarized medical reports that he reviewed, but noted that some earlier medical reports were not of record. Dr. Knorpp related that appellant’s physical examination was mostly conducted with appellant sitting in his wheelchair. Examination findings included severe obesity; no pain on palpation of the dorsal and lumbosacral spine; no lower extremity atrophy or abnormal tone; normal lower extremity bilateral muscle strength; mild left knee extension; normal and symmetrical knee reflexes; hypoactive left ankle reflex, and normal right ankle reflex. Dr. Knorpp found that appellant’s subjective complaints were not supported by objective physical examination findings. In support of this conclusion, he stated that appellant’s subjective sensory complaints were inconsistent with a verified diagnosis of radiculopathy or chronic S1 radiculopathy. Dr. Knorpp also noted that it was unclear whether OWCP had accepted the claim for a temporary or permanent aggravation. He observed that appellant displayed no left foot or ankle weakness during his examination on September 28, 2021. Dr. Knorpp stated that it was medically unclear as to whether the diagnosis of new onset left footdrop could be attributed to the accepted December 3, 1997 employment injury in the absence of a proximal long bone fracture, pelvic and or spinal fracture and or dislocation or serious visceral organ injury. He opined that appellant did not develop a consequential left foot drop due to the accepted December 3, 1997 employment injury, and he concluded that appellant had no residuals or disability due to the accepted December 3, 1997 employment injury, and that he required no further medical treatment.

3
Docket No. 10-667 (issued November 30, 2010).

2
 In a letter dated November 8, 2021, OWCP requested clarification from Dr. Knorpp and provided additional medical records from 1998 through 1999 for his review.

In a supplemental report dated February 11, 2022, Dr. Knorpp reviewed the additional medical records provided by OWCP. He explained that none of the medical evidence he reviewed supported expansion of appellant’s claim to include consequential left foot drop. Dr. Knorpp explained that none of the medical evidence he reviewed was reflective or consistent with appellant’s excruciating back pain with left leg pain complaints and left foot drop. After reviewing the medical records from 1998 through 1999, he opined that the December 3, 1997 accepted injury caused minor low back trauma. Dr. Knorpp opined that appellant’s accepted conditions had resolved by May 15, 1998, the date of his follow-up visit with Dr. Phillip V. McAllister, a Board- certified neurosurgeon.

In a March 4, 2022 letter, OWCP advised appellant that it proposed to terminate his wage- loss compensation and medical benefits because he ceased to have residuals or disability causally related to his accepted December 3 1997 employment injury. It informed him that the weight of the medical opinion evidence with respect to work-related residuals and disability rested with Dr. Knorpp’s reports dated September 28, 2021 and February 11, 2022. OWCP afforded appellant 30 days to submit evidence and argument challenging the proposed termination action. No response was received.

By decision dated April 4, 2022, OWCP terminated appellant’s wage-loss compensation and medical benefits, effective that date, because he had no residuals or disability causally related to his accepted December 3, 1997 employment injury after that date. It found that the weight of the medical opinion evidence rested with Dr. Knorpp’s reports dated September 28, 2021 and February 11, 2022.

On April 12, 2022 appellant, through counsel, requested a telephonic hearing before an OWCP hearing representative, which was held on August 17, 2022.

In a report dated April 11, 2022, Dr. Tyler Fieldsted, an osteopath Board-certified in family medicine, diagnosed chronic low back pain from herniated discs due to a 1984 Marine Corps injury, which he opined had been aggravated by the accepted December 3, 1997 employment injury. He disagreed with the termination of appellant’s compensation benefits. Dr. Fieldsted opined that appellant was totally disabled due to chronic back pain and severe bilateral knee and left hip osteoarthritis.

By decision dated October 17, 2022, OWCP’s hearing representative affirmed the April 4, 2022 decision. The hearing representative found that OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits based upon Dr. Knorpp’s opinion and that appellant had not established continuing disability and residuals after April 4, 2022.

On August 15, 2023 appellant, through counsel, requested reconsideration. In support of his request, counsel submitted a July 10, 2023 report from Dr. Kirk Leininger, a Board-certified physiatrist.

In his report dated July 10, 2023, Dr. Leininger related appellant’s history of injury and medical course of treatment. He indicated that on physical examination he observed very limited lumbar range of motion and inability to stand up straight, limited flexion and forward bending, and

3 tenderness at the lower thoracic spine and thoracolumbar junction. Dr. Leininger diagnosed primary left hip osteoarthritis, bilateral knee primary osteoarthritis, L2 compression fracture, lumbar spondylosis, and morbid obesity. A review of appellant’s bilateral knee x-rays showed moderate lateral and patellofemoral compartment arthritis, complete left hip loss of cartilage space, left hip femoral head deformation, and loss of right hip cartilage space. Dr. Leininger opined that appellant’s left hip osteoarthritis and bilateral knee arthritis were unrelated to the accepted lumbar strain. He also indicated that he was unsure of when appellant’s L2 old compression fracture occurred, and that appellant had degenerative disc disease and facet arthritis at L4-5 and L5-S1 which could be the cause of his current back pain. Following review of additional diagnostic studies, Dr. Leininger indicated that appellant’s L3-4 central stenosis was a consequence of his 1997 work-related injury. He concluded that appellant was capable of performing a sedentary job with restrictions of no lifting more than 15 pounds and ability to change position every 30 to 60 minutes when needed.

By decision dated September 1, 2023, OWCP denied modification.

LEGAL PRECEDENT -- ISSUE 1

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

4
S.G., Docket No. 23-0652 (issued October 11, 2023); B.M., Docket No. 21-1150 (issued April 5, 2022); R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 4, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 5 S.G., id.; B.M., id.; A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).
6
C.R., Docket No. 19-1132 (issued October 1, 2020); K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988). 7 S.G., supra note 4; E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).
8
S.G., id.; A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

4
 ANALYSIS -- ISSUE 1

The Board met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective April 4, 2022, as he no longer had disability or residuals causally related to his accepted December 3, 1997 employment injury.

In his September 28, 2021 report, Dr. Knorpp, OWCP’s referral physician, discussed appellant’s history of injury and medical course. He reported that the findings of his physical examination and related that appellant’s subjective complaints were not supported by objective physical examination findings. In support of this conclusion, Dr. Knorpp observed that appellant’s subjective sensory complaints were inconsistent with a verified diagnosis of radiculopathy or chronic S1 radiculopathy. He found that appellant had no medical residuals of his accepted December 3, 1997 employment injury and required no further medical treatment. Dr. Knorpp further found that appellant did not develop a consequential left foot drop due to the accepted December 3, 1997 employment injury. In a February 11, 2022 supplemental report, he reviewed the additional medical records provided by OWCP. Dr. Knorpp explained that none of the medical evidence reviewed was reflective or consistent with appellant’s excruciating back pain with left leg pain complaints and left foot drop. After reviewing the medical records from 1998 through 1999, Dr. Knorpp opined that December 3, 1997 accepted employment injury caused minor low back trauma. He opined that appellant’s accepted conditions had resolved by May 15, 1998, the date of his follow-up visit with Dr. McAllister.

The Board has reviewed the opinions of Dr. Knorpp and finds that they have reliability, probative value, and convincing quality with respect to their conclusions regarding the issue of termination. Dr. Knorpp provided a thorough factual and medical history and accurately summarized the relevant medical evidence. He provided medical rationale for his opinion by explaining that appellant’s accepted conditions had resolved, and no further medical treatment was required for the accepted December 3, 1997 employment injury.9 Accordingly, OWCP properly relied on Dr. Knorpp’s second-opinion report in terminating appellant’s wage-loss compensation and medical benefits.10

The Board finds therefore that OWCP properly terminated appellant’s wage-loss compensation and medical benefits, effective April 4, 2022.

LEGAL PRECEDENT -- ISSUE 2

When OWCP properly terminates compensation benefits, the burden shifts to appellant to establish continuing disability or residuals after that date, causally related to the accepted

9
See C.W., Docket No. 21-0943 (issued February 17, 2023); W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018); Melvina Jackson, 38 ECAB 443 (1987). 10 See P.B., Docket No. 21-0894 (issued February 8, 2023); E.S., Docket No. 20-0673 (issued January 11, 2021);
K.W., Docket No. 19-1224 (issued November 15, 2019); N.G., Docket No. 18-1340 (issued March 6, 2019); A.F., Docket No. 16-0393 (issued June 24, 2016).

5 employment injury.11 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.12

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish continuing disability or residuals, on or after April 4, 2022, causally related to his accepted December 3, 1997 employment injury.

Subsequent to the termination of his wage-loss compensation and medical benefits, appellant submitted an April 11, 2022 report from Dr. Fieldsted. In his April 11, 2022 report, Dr. Fieldsted opined that appellant’s December 3, 1997 employment injury aggravated appellant’s herniated disc condition which was initially caused by his 1984 Marine Corps injury. However, he did not provide medical rationale explaining his conclusory opinion and therefore his opinion is of diminished probative value.13 In addition, Dr. Fieldsted found that appellant was totally disabled due to severe bilateral knee and left hip osteoarthritis and chronic back pain. He, however, offered no opinion regarding the cause of appellant’s bilateral knee and left hip osteoarthritis. The Board has held that a medical report lacking an opinion on causal relationship is of no probative value.14 Thus, the Board finds that Dr. Fieldsted’s report is insufficient to establish appellant’s burden of proof.

The record also contains a July 10, 2023 report from Dr. Leininger who diagnosed primary left hip osteoarthritis and bilateral knee primary osteoarthritis, which he opined was unrelated to the accepted lumbar strain. Dr. Leininger also diagnosed L2 compression fracture, but indicated that he could not determine the cause of this condition. Dr. Fieldsted concluded that appellant was capable of performing a sedentary job. Following review of additional diagnostic studies, he indicated that appellant’s L3-4 central stenosis was a consequence of his 1997 work-related injury. Dr. Leininger, however, did not provide a rationalized medical explanation as to how the accepted 1997 injury physiologically caused the diagnosed L3-4 stenosis condition.15 He did not specifically address whether appellant had any continuing disability or residuals due to the

11
S.G., supra note 4; V.W., Docket No. 20-0693 (issued June 2, 2021); D.G., Docket No. 19-1259 (issued January 29, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019); J.R., Docket No. 17-1352 (issued August 13, 2018); Manuel Gill, 52 ECAB 282 (2001). 12 Id.
13
See P.B., supra note 10; V.W., Docket No. 20-0693 (issued June 2, 2021); E.S., supra note 10.
14
S.P., Docket No. 23-0537 (issued October 31, 2023); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
15
D.S., Docket No. 23-0218 (issued June 26, 2021); G.R., Docket No. 21-1196 (issued March 16, 2022); K.J., Docket No. 21-0020 (issued October 22, 2021); L.R., Docket No. 16-0736 (issued September 2, 2016); J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

6 accepted employment-related injury.16 Thus, the Board finds his opinion is insufficient to meet appellant’s burden of proof.

The Board, thus, finds that appellant has not met his burden of proof to establish continuing disability or residuals, on or after April 4, 2022, causally related to his accepted December 3, 1997 employment injury.

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 April 4, 2022, as he no longer had disability or residuals causally related to his accepted December 3, 1997 employment injury. The Board further finds that appellant has not met his burden of proof to establish continuing disability or residuals, on or after April 4, 2022, causally related to his accepted December 3, 1997 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the September 1, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 27, 2024
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

16
See P.B., supra note 10; M.L., Docket No. 20-1682 (issued June 24, 2021); K.E., Docket No. 17-1216 (issued February 22, 2018).

7