United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Baltimore, MD, Employer 

__________________________________________ 

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Docket No. 13-1157 

Issued: May 15, 2014 

Appearances: Case Submitted on the Record

Richard A. Daniels, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 12, 2013 appellant, through his attorney, filed a timely appeal from a 

February 5, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.2

ISSUES 

The issues are: (1) whether appellant established total disability for the period 

September 2001 to May 2010 due to his accepted conditions; and (2) whether OWCP abused its 

discretion by denying appellant authorization for surgery. 

 1

 5 U.S.C. § 8101 et seq.

2

 Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant on April 24, 2013 to 

confirm his continuing desire for an oral argument in Washington, DC. No written confirmation was received 

within the time allotted; thus, the Board, in its discretion, has decided the appeal on the record. 
2

FACTUAL HISTORY 

The record reveals that appellant, then a 41-year-old mail processor, had a previously 

accepted traumatic injury claim for a June 27, 1997 injury.3 OWCP accepted the claim for 

cervical strain and expanded the claim to include a herniated disc at C6-7. Appellant stopped 

work and underwent cervical surgery in September 2000. He returned to work in January 2001 

and stopped work again in May 2001. On March 2, 2005 appellant was removed from 

employment. 

Appellant filed multiple occupational disease claims alleging that he developed various 

bilateral upper extremity conditions, including bilateral carpal tunnel syndrome and thoracic 

outlet syndrome, as a result of continuous straining motions and overhead reaching, lifting, 

turning and twisting at work. He indicated that he first became aware of his condition on or 

about November 7, 2003. 

In a November 7, 2003 nerve conduction velocity (NCV) and electromyography (EMG) 

study, Dr. Harvey B. Pats reported an abnormal NCV of the upper extremities that was consistent 

with rather significant brachial plexus neuropathies. He stated that the possibility of thoracic 

outlet syndrome could not be excluded. Dr. Pats opined that these conditions were most likely 

due to a traction injury related to the 1997 work injury. He reported that appellant’s EMG was 

normal but explained that the study did not rule out the presence of compressive or traction 

neuropathies. 

In reports dated from March 30, 2004 to March 2, 2006, Dr. George Pirpiris, an 

orthopedic surgeon, reviewed appellant’s history and conducted an examination. He observed an 

abnormal thoracic outlet test with the arm abducted and pain and muscle weakness in the 

shoulder blade area and scapula. Dr. Pirpiris diagnosed thoracic outlet syndrome and explained 

that the findings of thoracic outlet could be a long time before they show up in injuries of this 

kind, sometimes maybe two or three years. He opined that the injuries appellant sustained were 

from the very beginning related to the June 27, 1997 employment injury. In a January 13, 2005 

attending physician’s report, Dr. Pirpiris checked “yes” that appellant’s thoracic outlet syndrome 

was caused or aggravated by an employment activity. He indicated that appellant was totally 

disabled from December 2, 2004 to February 28, 2005. 

In April 21 and June 17, 2004 and May 10, 2006 reports, Dr. Avraam Karas, a Boardcertified cardiac and thoracic surgeon, described the June 1997 employment injury and noted that 

appellant underwent cervical fusion in September 2000 but continued to be symptomatic. He 

related appellant’s complaints of severe tightness in his neck, mid-cervical pain radiating to the 

occipital area and severe pain in his left shoulder. Upon examination, Dr. Karas observed severe 

sensitivity on both sides of the pectoral muscles and extreme pain and sensitivity of the 

supraclavicular fossa. Adson’s sign and Roos’s tests were positive on both sides. Dr. Karas 

diagnosed cervical disc disease, status postcervical fusion, ulnar neuropathy bilaterally, bilateral 

carpal tunnel syndrome and severe bilateral thoracic outlet syndrome. He recommended 

appellant undergo another magnetic resonance imaging (MRI) scan and consider surgical 

treatment, such as transaxillary resection of the first rib. In a May 10, 2006 report, Dr. Karas 

 3

 File No. xxxxxx505. 
3

explained that when appellant became symptomatic after the initial injury it was initially thought 

that it was due to the cervical disc disease, but the fact that his symptoms did not improve after 

the cervical fusion confirms the diagnosis of thoracic outlet syndrome. He concluded that 

appellant’s bilateral thoracic outlet syndrome was a direct result of the June 22, 1997 

occupational injury. 

In reports dated January 7, 2007 to January 19, 2009, Dr. Constantine A. Misoul, a 

Board-certified orthopedic surgeon, examined appellant, reviewed his records and agreed with 

Dr. Karas’s May 10, 2006 report. He noted that appellant worked as a mail processor for many 

years and underwent cervical fusion in September 2000. Upon examination of the cervical spine, 

Dr. Misoul observed tenderness anteriorly and posteriorly and lateral bending and rotation with 

stiffness and pain. Tinel’s sign, Adson’s, and Roos’ maneuvers were positive. Dr. Misoul 

diagnosed bilateral thoracic outlet syndrome and persistent cervical radiculopathy. He opined 

that appellant had occupational bilateral thoracic outlet syndrome as a result of his years of work 

as a mail processor, which became symptomatic as a result of a particular June 27, 1997 incident. 

In a November 26, 2007 report, Dr. Misoul recommended that appellant be evaluated by 

Dr. Karas in order to discuss the possibility of surgery. In an April 7, 2008 report, he stated that 

appellant could not perform his regular work at the employing establishment due to his June 27, 

1997 employment injury and work-related bilateral thoracic outlet syndrome. 

On February 26, 2009 OWCP accepted appellant’s claim for aggravation of thoracic 

outlet syndrome. 

On February 26, 2009 OWCP also referred appellant’s claim, along with a statement of 

accepted facts and medical records, to a district medical adviser to determine whether thoracic 

outlet surgery was medically necessary to treat the effects of appellant’s employment injury. 

In a February 26, 2009 report, Dr. Arnold T. Berman, a Board-certified orthopedic 

surgeon and district medical adviser, reviewed appellant’s records and noted that he worked as a 

mail processor which required loading ledges, working on a machine, and keying in numbers on 

a computer. He reported that although the accepted condition was aggravation of thoracic outlet 

syndrome he did not believe that it was the correct diagnosis. Dr. Berman recommended that a 

new MRI scan and repeat EMG/NCV study be performed of the cervical spine. He concluded 

that based on the material at hand he could not recommend surgery because all previous studies 

were four to five years old. 

On March 10, 2009 appellant filed a claim for disability compensation for the period 

November 7, 2003 to March 31, 2009. 

By letter dated March 27, 2009, OWCP advised appellant that the medical evidence on 

file was insufficient to support that he was totally disabled from November 7, 2003 to March 31, 

2009 as a result of his work-related conditions. 

Appellant submitted additional reports by Dr. Pirpiris. In attending physician’s reports 

dated from October 4, 2000 to June 1, 2007, Dr. Pirpiris related the June 27, 1997 work injury 

and noted diagnoses of cervical compressive disease and brachial neuropathy due to thoracic 

outlet syndrome. He stated that EMG findings were suggestive of abnormal conducting. 

Dr. Pirpiris checked “yes” that appellant’s condition was caused or aggravated by the 
4

employment activity. He reported that appellant was totally disabled from September 2001 to 

September 2007. Dr. Pirpiris noted that he recommended surgery for thoracic outlet syndrome 

release long ago because physical therapy did not help. 

In a July 6, 2006 report, Dr. Pirpiris stated that, due to appellant’s ongoing problems, he 

had not been released to return to work since his initial examination on September 6, 2001. He 

noted that he repeatedly tried to authorize the correction of thoracic outlet syndrome. 

In an April 19, 2009 handwritten report, Dr. Pirpiris stated that appellant was under his 

care from September 6, 2001 to June 1, 2007. He noted that during this period appellant was not 

fit for his work and was excused from work through September 30, 2007. 

In a March 31, 2009 EMG report, Dr. Mark A. Reischer, Board-certified in physical 

medicine and rehabilitation, noted that appellant was examined for neck and shoulder pain, upper 

extremity pain, tingling, numbness and weakness following a work-related accident. Upon 

physical examination, he observed symmetrically limited cervical motion and supraclavicular 

tenderness. Dr. Reischer reported that the results of the EMG and NCV were within normal 

limits. He concluded that the electrodiagnostic findings supported a diagnosis of right thoracic 

outlet syndrome with decreased amplitude at the ulnar and median anterior brachial cutaneous 

sensory evoked responses with no evidence of left-sided thoracic outlet syndrome. 

On December 30, 2009 appellant requested to undergo revision of arm nerves, removal of 

rib, revision of neck muscle and exploration of artery surgeries. 

OWCP referred appellant again to Dr. Berman, the district medical adviser, to determine 

whether the requested surgery was necessary to treat appellant’s employment injuries. In a 

January 7, 2010 report, Dr. Berman stated that he reviewed appellant’s medical records and 

noted that appellant’s claim was accepted for cervical sprain and thoracic outlet syndrome. He 

related that he initially evaluated the claim on March 10, 2009 and had concluded that the 

thoracic outlet surgery was not medically needed for the effects of the work-related injury. 

Dr. Berman reported that there were no recent studies to justify the diagnosis of thoracic outlet 

syndrome. He opined that the diagnosis of thoracic outlet syndrome had not been established 

and that the diagnosis of thoracic outlet syndrome was incorrect. Dr. Berman stated that a 

November 7, 2009 neurological evaluation revealed bilateral ulnar nerve neuropathies and a 

vascular study showed some evidence of vascular compression, but concluded that there was no 

evidence that appellant had thoracic outlet syndrome and no objective basis to indicate surgery 

for thoracic outlet syndrome. 

In a letter February 23, 2010, OWCP advised appellant that the medical adviser opined 

that there was no evidence that he had surgical indication for thoracic outlet syndrome and no 

evidence that he had thoracic outlet syndrome. It requested that he submit additional medical 

evidence supporting the necessity of the requested surgical procedures and a rationalized medical 

opinion from his treating physician which explained the causal relationship between appellant’s 

thoracic outlet syndrome and factors of his employment. 

In a letter dated April 22, 2010, OWCP further advised appellant that there was no 

medical evidence submitted to establish that he was disabled from work beginning 

November 7, 2003. It noted that under his previous traumatic injury claim he was taken out of 
5

work until December 30, 2003 but was denied compensation for that claim. OWCP requested 

appellant to submit medical reports to support that he was unable to work during the claimed 

period as a result of his accepted conditions. 

On May 5, 2010 OWCP referred appellant’s case, along with a statement of accepted 

facts and the medical record, to Dr. Robert F. Draper, a Board-certified orthopedic surgeon, for a 

second opinion examination to determine whether appellant still had any residuals of his June 27, 

1996 employment injury, whether the proposed surgical procedures were necessary to treat his 

accepted conditions and whether appellant was totally disabled beginning June 2001 as a result 

of his accepted work injuries. 

In the statement of accepted facts dated May 5, 2010, OWCP stated that appellant had a 

previously accepted traumatic injury claim for cervical strain and herniated disc and a current 

occupational disease claim that was accepted for temporary aggravation of thoracic outlet 

syndrome. 

In a May 21, 2010 report, Dr. Draper reviewed appellant’s history and the statement of 

accepted facts. Examination of the cervical spine revealed that appellant had 40 degrees of 

turning the neck to the left and right and 20 degrees of right lateral flexion, left lateral flexion, 

forward flexion and extension of the cervical spine. Dr. Draper stated that throughout the range 

of motion and for most of the examination, appellant had exaggerated responses. Examination of 

the bilateral upper extremities revealed negative Tinel’s sign over the median and ulnar nerve at 

the wrist and elbows bilaterally. Adson’s test was also negative. Dr. Draper reported that 

appellant definitely did not have decreased sensation involving the right ring finger and the little 

finger for the hands bilaterally. He explained that there were absolutely no motor or sensory 

deficits in the upper extremities which would suggest or be compatible with thoracic outlet 

syndrome. Dr. Draper diagnosed herniated cervical disc C6-7 and status post cervical 

discectomy and fusion. He opined that the herniated cervical disc was related to the work injury 

but there was no evidence of carpal tunnel or thoracic outlet syndrome on either side. Dr. Draper 

concluded that there was no indication to perform further surgical procedures, particularly the 

removal of ribs, revision of neck muscles, and exploration of artery and veins, in order to treat 

thoracic outlet syndrome. He reported that total disability should cease and that appellant was 

capable of performing light duty with restrictions of no lifting more than 20 pounds occasionally 

and 10 pounds frequently. 

In a September 21, 2010 letter, appellant’s representative stated that appellant had been 

without wage-loss compensation since September 6, 2001. He opined that appellant was entitled 

to wage-loss compensation since that date and enclosed a Form CA-7 requesting disability 

compensation for the period September 6, 2001 to September 10, 2010. 

In a decision dated December 23, 2010, OWCP denied authorization for appellant to 

undergo thoracic outlet surgery based on Dr. Draper and Dr. Berman’s reports which established 

that the surgical procedures were not medically necessary. 

In a letter dated December 28, 2010, appellant, through counsel, submitted a request for a 

hearing. 
6

By decision dated March 18, 2011, an OWCP hearing representative vacated the 

December 23, 2010 OWCP decision and remanded the case for further development of the 

medical evidence. It determined that a conflict in medical opinion existed between OWCP’s 

referral physicians, Drs. Draper and Berman, and appellant’s physician, Dr. Karas, regarding 

whether surgery was medically necessary to treat appellant’s accepted condition. OWCP 

remanded the case for referral to an impartial medical examiner. 

On May 18, 2011 appellant submitted a claim for disability compensation for the period 

August 11, 2010 to May 14, 2011. 

On May 11, 2011 OWCP referred appellant’s case, along with the statement of accepted 

facts and the medical record, to Dr. Donald Burke Haskins, an orthopedic surgeon, for an 

impartial medical examination, to resolve the conflict in medical opinion between Dr. Karas, 

appellant’s physician, and OWCP’s referral physicians. 

In a June 15, 2011 report, Dr. Haskins accurately described appellant’s history and 

review of the records, including the May 5, 2010 statement of accepted facts (SOAF). He related 

appellant’s current complaints of pain in his neck, arm and shoulders and difficulty lifting his 

arms above shoulder height. Examination of the cervical spine revealed a well-healed anterior 

cervical scar with no tenderness or deformity. Dr. Haskins observed that appellant was unable to 

rotate to the right or left. Examination of both shoulders revealed no atrophy or deformity, but 

appellant indicated an area of prominence in the left acromioclavicular region. Adson’s test 

produced complaints of bilateral shoulder pain without loss of pulse. Speeds sign was negative. 

Spurling’s sign, Belly test and lift-off tests could not be performed. Dr. Haskins diagnosed status 

post industrial-related accident with subsequent fusion at C6-7, multiple somatic complaints, and 

abnormal nerve conduction and vascular studies. He opined that the diagnosis of thoracic outlet 

syndrome was not established. Dr. Haskins explained that, while appellant had laboratory testing 

consistent with this finding, his current complaints and physical examination did not support the 

diagnosis of thoracic outlet syndrome. He stated that appellant’s complaints were too diffuse 

and nonspecific and his physical findings were not consistent enough to support thoracic outlet 

syndrome. Dr. Haskins concluded that surgical intervention would not improve appellant’s 

function or lessen his complaints. He also reported that the causes of thoracic outlet syndrome 

were many and not necessarily industry related. Dr. Haskins stated that in reviewing appellant’s 

records he was unable to ascertain any specific time of “total disability” due to thoracic outlet 

syndrome. 

In a decision dated July 19, 2011, OWCP denied appellant’s claim for disability 

compensation for the period November 27, 2003 to May 14, 2011 finding that the medical 

evidence failed to establish that he was totally disabled during that period as a result of his 

employment injury. It found that the weight of the medical evidence rested with Dr. Haskins’ 

June 15, 2011 impartial medical report. 

In a separate decision dated July 19, 2011, OWCP denied authorization for appellant to 

undergo thoracic outlet surgery based on Dr. Haskins’ June 15, 2011 impartial medical examiner 

report. 
7

On July 19, 2011 OWCP also proposed to terminate appellant’s medical benefits based 

on Dr. Haskins’ June 15, 2011 impartial medical report. By decision dated August 23, 2011, it 

finalized the termination of medical benefits. 

On July 26, 2011 appellant, through his representative, submitted a request for a hearing. 

In a September 7, 2011 letter, he disagreed with the July 19, 2011 decision denying his disability 

compensation claim and authorization for surgery and the August 23, 2011 decision terminating 

his medical benefits. Appellant’s representative alleged that Dr. Draper’s May 21, 2010 second 

opinion examination report established that appellant had been totally disabled and was unable to 

return to full duty. He stated that OWCP ignored the evidence and requested that Dr. Haskins 

provide an opinion on the issue of disability even though a conflict of medical opinion was not 

found regarding the issue of disability. Appellant’s representative also contended that OWCP 

should not have based its decision on Dr. Haskins’ opinion because he lacked the expertise and 

qualifications to provide an opinion on thoracic outlet syndrome. He pointed out that 

Dr. Haskins was not a thoracic surgeon and that his conclusions lacked rationale and sound 

reasoning. Appellant’s representative noted that Dr. Haskins agreed that the laboratory tests 

supported a diagnosis of thoracic outlet syndrome, but he based his conclusions on the lack of 

physical findings. He further alleged that Dr. Karas’s opinion should have been given the weight 

of medical evidence as he is a Board-certified thoracic surgeon. Appellant’s representative 

concluded that the medical evidence clearly established that appellant was totally disabled since 

2001 as a result of his accepted injuries, that surgery was medically necessary to treat the 

accepted conditions and that appellant continued to suffer from the residuals of his work-related 

injuries. 

Appellant continued to submit reports by Dr. Misoul regarding his treatment for thoracic 

outlet syndrome. 

In a decision dated October 25, 2011, an OWCP hearing representative vacated and 

remanded OWCP’s July 19, 2011 decision. He found that the May 5, 2010 SOAF was 

inaccurate and that OWCP had failed to administratively combine the two relevant compensation 

files4

 before referring appellant to Dr. Haskins for an impartial medical examination. 

Accordingly, the opinion of Dr. Haskins lacked probative value and could not represent the 

weight of medical evidence. The hearing representative remanded the case for OWCP to 

combine the case files, amend the SOAF, and refer the combined medical records to Dr. Draper 

for another second opinion on the need for the proposed surgery, whether appellant had workrelated thoracic outlet syndrome, and whether appellant was totally or partially disabled from 

work since June 2001.5

On November 2, 2011 OWCP combined File No. xxxxxx505 with the current File 

No. xxxxxx565. 

 4

 File Nos. xxxxxx565 and xxxxxx505. 

5

 OWCP’s hearing representative further found that, because OWCP did not meet its burden of proof to terminate 

appellant’s benefits, his medical benefits should be reinstated retroactive to the date of termination. Since appellant 

was not receiving wage-loss compensation, he found that there was no need to reinstate any wage-loss compensation 

benefits. 
8

On April 10, 2012 OWCP referred appellant, along with an amended SOAF,6

 to 

Dr. Draper for a second opinion examination to determine whether appellant had any residuals of 

either the June 27, 1997 traumatic injury or occupational aggravation of thoracic outlet 

syndrome, whether the proposed surgical procedures were medically necessary and whether 

appellant had been totally disabled by either of the accepted injuries since he stopped work on 

May 15, 2001. 

In an April 27, 2012 report, Dr. Draper noted that he reviewed the amended statement of 

accepted facts and appellant’s medical records. He accurately described the June 27, 1997 

employment injury for a cervical strain and noted that OWCP also accepted an occupational 

disease claim for temporary aggravation of thoracic outlet syndrome. Dr. Draper reviewed 

Dr. Haskins’ June 15, 2011 report and his previous May 21, 2010 evaluation. Upon examination 

of the cervical spine, he observed range of motion 40 degrees to the left and right, 30 degrees of 

forward flexion, and 10 degrees of extension. Dr. Draper stated that throughout the examination 

appellant exhibited various pain behaviors which included grimacing and jumping when touched. 

He opined that these actions appeared to be in excess of examination findings. Examination of 

the left shoulder demonstrated forward flexion of 160 degrees and abduction 140 degrees. 

Yergason’s sign, impingement test and Hawkins sign were negative. Dr. Draper diagnosed 

herniated disc at C6-7. He opined that based on careful evaluation appellant did not have 

thoracic outlet syndrome and did not need to undergo surgery. Dr. Draper also reported that 

although appellant continued to suffer residuals of his June 27, 1997 injury and was capable of 

performing modified duty. He believed that appellant’s total disability ceased at the time of his 

last examination dated May 21, 2010. 

On May 21, 2012 OWCP requested that Dr. Draper provide a supplemental report 

containing the medical rationale for his opinion that there was no medical evidence of thoracic 

outlet syndrome and also providing an opinion on whether any residuals of appellant’s accepted 

cervical strain or aggravation of thoracic outlet syndrome prevented him from performing any of 

his job duties at the time he stopped work in May 2001. 

In a June 7, 2012 supplemental report, Dr. Draper stated that he reviewed appellant’s 

records, previous examination findings and additional materials. He stated that the examination 

findings in his report were not consistent with the diagnosis of thoracic outlet syndrome. 

Dr. Draper reported that this conclusion did not mean that appellant never had thoracic outlet 

syndrome, but that on the date that he examined appellant he did not find evidence of thoracic 

outlet syndrome. He further noted that appellant’s accepted conditions of aggravation of thoracic 

outlet syndrome and herniated disc prevented appellant from performing his job duties. 

In a decision dated June 3, 2012, OWCP denied appellant’s claim for wage-loss 

compensation from November 7, 2003 to May 21, 2010 but found that he was entitled to wageloss compensation effective May 21, 2010. It determined that according to Dr. Draper’s May 21, 

2010 report appellant was partially disabled as a result of his work-related herniated cervical 

disc, and thus, entitled to wage-loss compensation after this date. 

 6

 The amended SOAF described both of appellant’s June 27, 1997 employment injury and occupational disease 

claims. It noted that his claim was accepted for aggravation of thoracic outlet syndrome. 
9

In a separate decision, OWCP also denied authorization for surgery finding that 

Dr. Draper’s April 27, 2012 report represented the weight of medical evidence in establishing 

that surgery was not necessary to treat his condition. 

On July 13, 2012 appellant’s representative submitted a request for a hearing, which was 

held on November 15, 2012. He related appellant’s history of medical treatment and the timeline 

of the case. Appellant’s representative noted that appellant had been treated by Dr. Karas, one of 

the most respected thoracic outlet surgeons in the country, who provided several well-reasoned 

medical reports regarding the medical necessary of surgery in order to treat appellant’s thoracic 

outlet syndrome. He contended that Dr. Karas’s reports should be granted the weight of medical 

evidence as his qualifications were above any other doctor concerning the diagnosis and 

treatment of thoracic outlet syndrome. Appellant’s representative pointed out that Dr. Karas 

provided well-rationalized medical opinion explaining that appellant was totally disabled as a 

result of his accepted conditions and that surgery was medically necessary to treat his condition. 

By decision dated February 5, 2013, an OWCP hearing representative affirmed the 

July 3, 2012 decision denying surgery for thoracic outlet syndrome and appellant’s claim for 

wage-loss benefits beginning November 7, 2003. He found that the weight of the medical 

evidence rested with Dr. Draper’s April 27, 2012 second opinion examination report. The 

hearing representative noted that appellant was now receiving wage-loss compensation under the 

cervical claim effective May 10, 2010 but found that there was no medical evidence to establish 

that he was entitled to earlier compensation as a result of either his cervical or thoracic outlet 

conditions. 

LEGAL PRECEDENT -- ISSUE 1 

Under FECA the term disability is defined as incapacity, because of employment injury, 

to earn the wages that the employee was receiving at the time of injury.7 For each period of 

disability claimed, the employee must establish that he or she was disabled for work as a result of 

the accepted employment injury. Disability is not synonymous with a physical impairment 

which may or may not result in incapacity to earn the wages. An employee who has a physical 

impairment causally related to a federal employment injury but who nonetheless has the capacity 

to earn wages he or she was receiving at the time of the injury has no disability as that term is 

used in FECA.8

An employee seeking benefits under FECA bears the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence. Whether a particular injury 

causes an employee to become disabled for work and the duration of that disability are medical 

issues that must be proved by a preponderance of reliable, probative and substantial medical 

opinion evidence.9 Such medical evidence must include findings on examination and the 

physician’s opinion, supported by medical rationale, showing how the injury caused the 

employee disability for his or her particular work.10 Monetary compensation benefits are 

 7 See Prince E. Wallace, 52 ECAB 357 (2001). 

8 Cheryl L. Decavitch, 50 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004). 

9 Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, id.

10 Dean E. Pierce, 40 ECAB 1249 (1989). 
10

payable to an employee who has sustained wage loss due to disability for employment resulting 

from the employment injury.11 The Board will not require OWCP to pay compensation for 

disability in the absence of medical evidence directly addressing the specific dates of disability 

for which compensation is claimed. To do so would essentially allow an employee to self-certify 

his or her disability and entitlement to compensation.12

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility to see that justice is done.13

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a cervical condition as a result of a June 27, 

1997 employment incident and an aggravation of thoracic outlet syndrome as a result of factors 

of his employment. He stopped work in May 2001 and did not return. Appellant filed various 

claims for disability compensation for the period September 6, 2001 to June 29, 2012. 

Appellant was initially treated by Drs. Pirpiris, Karas and Misoul. They reviewed 

appellant’s records and noted his previous June 27, 1997 employment injury. All three 

physicians conducted an examination and diagnosed thoracic outlet syndrome. They concluded 

that appellant’s thoracic outlet syndrome was caused or aggravated by factors of his 

employment. Both Drs. Karas and Misoul explained that appellant had thoracic outlet syndrome 

as a result of his employment and his condition became symptomatic or was aggravated after the 

June 27, 1997 employment injury. In attending physician’s reports dated from October 4, 2000 

to June 1, 2007, Dr. Pirpiris noted that appellant was totally disabled from September 2001 to 

September 2007. In July 6, 2006 and April 19, 2009 reports, Dr. Pirpiris further stated that 

appellant had been under his care since September 6, 2001. He reported that appellant had not 

been released to return to work since his initial examination and that appellant was not fit for his 

work until September 30, 2007. 

OWCP referred appellant to Dr. Draper for a second opinion examination to determine, 

among other issues, whether appellant was totally disabled beginning June 2001 as a result of his 

accepted work injuries. In a May 21, 2010 report, he reviewed appellant’s history and conducted 

an examination. Dr. Draper diagnosed herniated cervical disc C6-7 and status post cervical 

discectomy and fusion. He opined that the herniated cervical disc was related to the work injury 

but there was no evidence of carpal tunnel or thoracic outlet syndrome on either side. He 

reported that total disability should cease and that appellant was capable of performing light duty 

with restrictions of no lifting more than 20 pounds occasionally and 10 pounds frequently. 

Following the October 25, 2011 hearing representative’s decision vacating and remanding the 

case, OWCP again referred appellant’s case to Dr. Draper for a second opinion examination. In 

an April 27, 2012 report, Dr. Draper stated that appellant’s disability had ceased at the time of 

his last examination dated May 21, 2010. 

 11 Laurie S. Swanson, 53 ECAB 517, 520 (2002); see also Debra A. Kirk-Littleton, 41 ECAB 703 (1990). 

12 Amelia S. Jefferson, supra note 9. 

13 Jimmy A. Hammons, 51 ECAB 219 (1999). 
11

Although Dr. Draper opined that appellant’s total disability had ceased at the time of his 

May 21, 2010 evaluation and concluded that he was capable of performing light duty, the Board 

notes that he did not address when appellant’s disability began (appellant claimed total disability 

beginning September 6, 2001). While OWCP undertook development of the disability issue, it 

did not receive a probative medical report completely addressing the issue of disability for the 

period beginning September 6, 2001. Dr. Draper merely stated that appellant was no longer 

disabled as of May 21, 2010, but he failed to explain when appellant’s period of disability began. 

While appellant has the burden to establish entitlement to disability compensation, 

OWCP shares responsibility in the development of the evidence. As it undertook development 

of the disability issue by referring him to Dr. Draper for an opinion on the period or periods of 

disability resulting from appellant’s employment-related conditions, OWCP has the 

responsibility to obtain a report that resolves the issue presented in the case.14 The Board notes 

that although Dr. Haskins’ opined in his June 15, 2011 report that appellant did not have any 

periods of disability, the record reflects that his report lacked probative value as it was based on 

an inaccurate SOAF. Further development of the evidence is also warranted in light of the fact 

that Dr. Pirpiris noted that appellant was totally disabled from September 2001 to 

September 2007. The Board will therefore set aside OWCP’s hearing representative’s 

February 5, 2013 decision and remand the case for further development of the medical opinion 

evidence and an appropriate final decision on appellant’s entitlement to disability compensation 

for the remaining September 6, 2001 to May 20, 2010 period. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies 

prescribed or recommended by a qualified physician which OWCP, under authority delegated by 

the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or 

aid in lessening in the amount of monthly compensation.15 In interpreting the section 8103(a), 

the Board has recognized that OWCP has broad discretion in approving services provided under 

FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in 

the shortest amount of time.16 OWCP has administrative discretion in choosing the means to 

achieve this goal and the only limitation on the OWCP’s authority is that of reasonableness.17 

Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable 

exercise of judgment or actions taken which are contrary to both logic and probable deductions 

from established facts. It is not enough to merely show that the evidence could be construed so 

as to produce a contrary factual conclusion.18

Section 8123(a) of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the employee’s physician, OWCP shall 

 14 See J.B., Docket No. 11-816 (issued October 24, 2011). 

15 5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999). 

16 W.T., Docket No. 08-812 (issued April 3, 2009); A.O., Docket No. 08-580 (issued January 28, 2009). 

17 D.C., 58 ECAB 629 (2007); Mira R. Adams, 48 ECAB 504 (1997). 

18 L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990). 
12

appoint a third physician who shall make an examination. This is called a referee examination 

and OWCP will select a physician who is qualified in the appropriate specialty and who has no 

prior connection with the case.19

Where there exist opposing medical reports of virtually equal weight and rationale and 

the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.20 In situations where OWCP secures an opinion from 

an impartial medical specialist for the purpose of resolving a conflict in medical evidence and the 

opinion from such specialist requires clarification or elaboration, OWCP has the responsibility to 

secure a supplemental report from the specialist for the purpose of correcting the defect in the 

original opinion. If the specialist is unwilling or unable to clarify and elaborate on his or her 

opinion, the case should be referred to another appropriate impartial medical specialist.21 Unless 

this procedure is carried out by OWCP the intent of section 8123(a) of FECA will be 

circumvented when the impartial specialist’s medical report is insufficient to resolve the conflict 

of medical evidence.22

ANALYSIS -- ISSUE 2 

By decision dated March 18, 2011, an OWCP hearing representative remanded the 

October 23, 2010 denial decision finding that a conflict in medical opinion existed between 

appellant’s physician, Dr. Karas, who recommended that appellant undergo thoracic outlet 

syndrome surgery, and Dr. Draper, the second opinion examiner, who determined that surgery 

was not medically necessary to treat appellant’s employment-related conditions. OWCP referred 

appellant to Dr. Haskins to resolve the conflict in medical opinion. 

In a June 15, 2011 report, Dr. Haskins accurately described appellant’s history and 

reviewed his records, including the statement of accepted facts. Upon examination of the 

cervical spine, he observed that appellant was unable to rotate to the right or left. Examination 

of both shoulders revealed no atrophy or deformity, but appellant indicated an area of 

prominence in the left acromioclavicular region. Adson’s test produced complaints of bilateral 

shoulder pain without loss of pulse. Speeds sign was negative. Dr. Haskins diagnosed status 

post industrial-related accident with subsequent fusion at C6-7, multiple somatic complaints, and 

abnormal nerve conduction and vascular studies. He opined that the diagnosis of thoracic outlet 

syndrome was not established. Dr. Haskins explained that, while appellant had laboratory testing 

consistent with this finding, his current complaints and physical examination did not support the 

diagnosis of thoracic outlet syndrome. He stated that appellant’s complaints were too diffuse 

and nonspecific and his physical findings were not consistent enough to support thoracic outlet 

syndrome. Dr. Haskins concluded that surgical intervention would not improve appellant’s 

function or lessen his complaints. He also reported that the causes of thoracic outlet syndrome 

were many and not necessarily industry related. 

 19 5 U.S.C. § 8123(a); see also Charles S. Hamilton, 52 ECAB 110 (2000). 

20 Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002). 

21 See Philip H. Conte, 56 ECAB 213 (2004); Guiseppe Aversa, 55 ECAB 164 (2003). 

22 Harold Travis, 30 ECAB 1071 (1979). 
13

In a decision dated July 19, 2011, OWCP again denied authorization for appellant to 

undergo thoracic outlet surgery based on Dr. Haskins’ June 15, 2011 impartial medical examiner 

report. 

By decision dated October 25, 2011, an OWCP hearing representative vacated and 

remanded OWCP’s July 19, 2011 decision. He found that the May 5, 2010 SOAF was incorrect 

and that OWCP had failed to administratively combine the two relevant compensation files, File 

Nos. xxxxxx565 and xxxxxx505, before referring appellant to Dr. Haskins for an impartial 

medical examination. Accordingly the opinion of Dr. Haskins could not represent the weight of 

medical evidence. The hearing representative remanded the case for OWCP to combine the case 

files, amend the SOAF, and refer the combined medical records to Dr. Draper for another second 

opinion on the need for the proposed surgery, whether appellant had work-related thoracic outlet 

syndrome and whether appellant was totally or partially disabled from work since June 2001. 

As previously stated, in situations where OWCP secures an opinion from an impartial 

medical specialist for the purpose of resolving a conflict in the medical evidence and the opinion 

from such specialist requires clarification or elaboration, OWCP has the responsibility to secure 

a supplemental report from the specialist for the purpose of correcting the defect in the original 

opinion. If the specialist is unwilling or unable to clarify and elaborate on his or her opinion, the 

case should be referred to another appropriate medical specialist.23 In this case, OWCP referred 

appellant’s case to Dr. Haskins to resolve a conflict in medical opinion as to whether thoracic 

outlet syndrome surgery was medically necessary to treat appellants accepted condition. 

Dr. Haskins’ June 15, 2011 report was later found to lack probative value as it was based on an 

inaccurate history. Instead of referring the case back to Dr. Haskins to resolve the conflict based 

on an accurate history, OWCP referred the case for another second-opinion examination. 

Because a conflict in medical opinion still exists in this case, the Board finds that it is not in 

posture for a decision and will remand it back to OWCP. On remand, OWCP should request 

Dr. Haskins provide an opinion on whether thoracic outlet surgery is medically necessary to treat 

appellant’s condition based on a complete case record and correct SOAF. Following this and 

any other development deemed necessary, OWCP shall issue an appropriate decision. 

CONCLUSION 

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

 23 Supra note 22. 
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ORDER 

IT IS HEREBY ORDERED THAT the February 5, 2013 decision of the Office of 

Workers’ Compensation Programs is vacated and remanded for further proceedings consistent 

with this opinion. 

Issued: May 15, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board