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United States Department of Labor
Employees’ Compensation Appeals Board
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K.H., Appellant
and
U.S. POSTAL SERVICE,
St. Louis, MO, Employer
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Docket No. 08-1053
Issued: October 15,
2008
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Appearances: Case
Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS,
Chief Judge
DAVID S. GERSON,
Judge
JAMES A. HAYNES,
Alternate Judge
JURISDICTION
On February 26, 2008
appellant filed a timely appeal from the Office of Workers’ Compensation
Programs’ merit decision dated December 11, 2007 terminating her
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the
Office met its burden of proof to terminate appellant’s compensation and
medical benefits.
FACTUAL HISTORY
On August 15, 2006
appellant, then a 50-year-old mail handler filed a traumatic injury claim
alleging that on August 5, 2006 a bundle of magazines fell onto her head
resulting in muscle strain. On October 20, 2006 the Office accepted her claim
for neck sprain.
Further medical evidence was
received following the acceptance of the claim. In a December 7, 2006
note, Dr. William Richardson, Board-certified in family medicine,
requested that appellant be evaluated by a physical therapist for neck pain and
headache and be treated as needed. In a December 14, 2006 note, he stated
that appellant was hit on the head by a bundle of magazines on August 5,
2006 while at work. Dr. Richardson found muscle spasms and trigger points
in the neck, diagnosed musculoskeletal neck pain and headaches, and recommended
medications and physical therapy.
By letter dated December 7,
2006, the Office advised appellant that information had been received from her
treating physician indicating that she had sustained a recurrence of
disability. It requested further information from her. Appellant responded by
letter received on December 28, 2006 indicating that her pain had
intensified greatly, that she remained on light duty but that she could not
perform a different assignment requested by her supervisor. On January 24,
2007 the Office denied appellant’s claim for a recurrence of total disability.
On February 26, 2007 the
Office denied appellant’s request for a shoulder condition to be included as a
consequential injury of her claim.
On March 28, 2007
appellant requested an oral hearing.
On March 29, 2007 appellant
accepted an offer of modified duty for four and a half hour shifts. On
May 3, 2007 the Office denied appellant’s recurrence claim beginning on
March 29, 2007.
In a May 10, 2007
decision, the Office denied appellant’s hearing request finding that it was untimely.
In a May 16, 2007 letter,
the field nurse assigned by the Office asked Dr. Richardson to select one
of three doctors: Dr. R. Peter Mirkin, a Board-certified orthopedic
surgeon, Dr. Tom Reinsel or Dr. Michael Chabot, to treat appellant.
In a May 17, 2007 note,
Dr. Richardson requested that Dr. Mirkin evaluate and treat appellant for
chronic neck pain.
In a May 23, 2007 letter,
Dr. Mirkin stated that he was evaluating appellant for a second opinion
evaluation only. He stated that appellant related the August 5, 2006
injury when a bundle struck her in the head. Dr. Mirkin also stated that
he reviewed reports from Dr. Richardson which documented extensive
treatment. He performed a physical examination finding that her range of
motion of the cervical spine was 90 percent of normal with no spasms, motor and
sensory examination intact and normal peripheral pulses. Dr. Mirkin
reviewed the computerized tomography (CT) scan and did not see any new disc herniation
or severe degenerative changes above and below the fusion at C5-6. He opined
that appellant had cervical spondylosis. Dr. Mirkin noted that she “may
have had a strain but certainly her symptomatology has persisted for much
longer than a strain should.” He found no objective reason for appellant’s
persistent symptomatology. Dr. Mirkin recommended that a myleogram be
performed.
On May 30, 2007 a CT
cervical spine myelography was performed by Dr. Lubuan Wang, Board-certified
in radiology, and revealed postsurgical changes at C5-6, that alignment was
near anatomic with straightening of normal lordotic curvature which could
suggest underlying muscle spasm. Dr. Wang diagnosed minimal posterior
osteophytes at C5-6 and C6-7 without central canal stenosis and found no
central canal stenosis or neural foraminal stenosis identified within the limits
of the examination.
In a June 6, 2007 letter,
Dr. Mirkin stated that he saw appellant for a second medical evaluation. He
reviewed the myelogram and found signs of a fusion at C5-6, minimal
spondylosis, no compression of nerve roots and no herniated disc and no
evidence of neuroforaminal stenosis. Dr. Mirkin stated that her
examination was unchanged. Appellant reported to Dr. Mirkin that her neck
was swollen but he did not see it. Dr. Mirkin stated that he was unable
to find a structural abnormality of her neck as a result of her work injury
therefore there was no reason to pose restrictions on her as a result of her
neck condition. He found appellant had reached maximum medical improvement from
her work injury and could return to work without restrictions. In a June 14,
2007 letter, appellant told the Office that she did not feel that Dr. Mirkin
properly performed a physical examination.
In a June 20, 2007 letter,
the Office asked Dr. Richardson to review Dr. Mirkin’s report and respond
as to whether he agreed with Dr. Mirkin’s opinion that appellant could be
released to regular duty. On June 26, 2007 Dr. Richardson responded “no”
and submitted a work restriction form limiting appellant to four hours of work
per day indefinitely. He stated that it was “undetermined” whether appellant
had reached maximum medical improvement as she had further evaluations with a
neurosurgeon.
On July 17, 2007 the
Office terminated appellant’s disability compensation and medical benefits.
In an August 5, 2007
letter, appellant objected to the July 17, 2007 termination and argued
that there was evidence of her accepted neck strain condition in the enclosed
letter from Dr. Thomas R. Forget, Jr., Board-certified in
neurological surgery.
In his June 25, 2007
letter, Dr. Forget reported that he examined appellant on the same day and
found slight decreased range of motion of her neck due to a muscle spasm in her
neck. He opined that appellant was suffering from neck strain and
whiplash-type injury and recommended pain management. Dr. Forget also reported
appellant’s history, that she was hit in the head at work in August 2006
and had had a cervical fusion at C5-6.
In a December 11, 2007
merit decision, an Office hearing representative conducted a review of the
written record and affirmed the termination of appellant’s disability and
medical benefits finding that the weight of the medical evidence was with
Dr. Mirkin who found that appellant had no residuals of the accepted
injury and could resume full-time work.
LEGAL PRECEDENT
Once the Office accepts a
claim, it has the burden to justify termination or modification of compensation
benefits.
After it has determined that an employee has a disability causally related to
his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer
related to the employment.
Furthermore, the right to medical benefits for an accepted condition is not
limited to the period of entitlement for disability.
To terminate authorization for medical treatment, the Office must establish
that appellant no longer has residuals of an employment-related condition which
require further medical treatment.
ANALYSIS
The Board finds that the
Office improperly terminated appellant’s compensation benefits effective December 11,
2007 on the grounds that she had no further employment-related disability or
residuals of her condition. In order to terminate compensation and medical
benefits the Office must establish that the accepted conditon has ceased or is
no longer related to the employment incident.
As the Office has accepted appellant for neck strain it bears the burden to establish
either that the neck strain has resolved or that it is no longer related to the
August 5, 2006 employment incident. The Office has not met its burden to
terminate appellant’s compensation and medical benefits.
The Board finds Dr. Mirkin’s
reports not to be based on an accurate factual history nor sufficiently well
rationalized.
Dr. Mirkin opined that appellant “may have had a strain but certainly her
symptomatology has persisted much longer than a strain should.” In order for
his reports to be based on an accurate factual history Dr. Mirkin must
accept as fact what the Office has accepted, that appellant had a neck strain
due to the August 5, 2006 employment incident. As his opinion is not
based on accurate factual history it is of no probative value on the issue of
whether the condition has resolved. Additionally Dr. Mirkin’s opinion is
speculative. He concludes that because a strain should have resolved by
the date of the examination that appellant’s current symptomatology could not
be from a strain. Finally Dr. Mirkin never definitively opines that
appellant’s neck strain had resolved. To establish that a condition has
resolved the Office must provide a rationalized medical opinion based on proper
factual and medical background which concludes that the condition has
completely resolved. The Office based its decision on reports that do not support
its conclusion that appellant’s neck strain condition had resolved.
The Office did not address
Dr. Forget’s report. Dr. Forget reported appellant’s factual
history, performed a physical examination and diagnosed neck strain and
whiplash-type injury. Dr. Mirkin’s and Dr. Forget’s reports are assessed
as to the sufficiency of the medical rationale provided to support their
conclusions. Dr. Mirkin’s report has no probative value as it is
speculative and based on an in accurate factual history. Dr. Forget’s
report supports a diagnosis of neck strain based on physical examination. The
burden is not on appellant to prove that her neck strain still exists but
rather the burden is on the Office to prove that the neck strain has resolved. The
weight of the medical evidence does not rest with Dr. Mirkin therefore the
Office has not met its burden.
For the foregoing reasons, the
Board finds that the Office did not properly terminate appellant’s medical
benefits, and failed to meet its burden of proof to terminate appellant’s wage-loss
compensation.
CONCLUSION
The Board finds that the
Office improperly terminated appellant’s compensation and medical benefits as
it did not meet its burden of proof to establish that appellant’s accepted
condition had ceased.
ORDER
IT
IS HEREBY ORDERED THAT the December 11, 2007 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: October 15, 2008
Washington, DC
Alec J.
Koromilas, Chief Judge
Employees’
Compensation Appeals Board
David S.
Gerson, Judge
Employees’
Compensation Appeals Board
James A.
Haynes, Alternate Judge
Employees’
Compensation Appeals Board