United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 13-1995 

Issued: March 11, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 28, 2013 appellant, through her attorney, filed a timely appeal of a June 12, 

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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish a back condition 

as a result of her accepted employment exposures. 

On appeal counsel argued that the impartial medical examiner was not properly selected 

as there were no screen shots and that his report was vague and required supplemental evidence. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On October 19, 2010 appellant, then a 45-year-old mail handler filed an occupational 

disease claim alleging that she developed a low back and neck condition with radiculopathy as a 

result of her employment duties of pushing, pulling, lifting and moving heavy sacks and 

containers of mail. She first related her condition to her employment in September 2010. 

The employing establishment submitted a statement dated December 10, 2012 alleging 

that appellant had not performed her job as a mail handler since June 11, 2010. It stated that her 

primary function for the last two years was driving a forklift on the platform and working as a 

tow motor driver. Appellant did not report difficulty or pain to her supervisors. 

In a letter dated December 14, 2010, OWCP requested additional factual and medical 

evidence in support of appellant’s claim. Dr. Bruce H. Grossinger, an osteopath and a Boardcertified neurologist, completed a report on August 31, 2010 diagnosing lumbar radiculopathy as 

a result of her federal employment. He examined appellant on November 11, 2010 and found 

evidence of multiple symptomatic disc bulges, lumbar radiculopathy and lumbar facet syndrome 

resulting from a June 16, 2010 employment injury. 

In a decision dated January 14, 2011, OWCP denied appellant’s claim finding that the 

factual element of her claim had not been established due to the discrepancy between her 

statement and that of the employing establishment. 

Appellant requested an oral hearing before an OWCP hearing representative on 

January 21, 2011. Dr. Grossinger submitted a report dated May 5, 2011. He noted that appellant 

was employed as a mail handler for 21 years, a position which required physical work including 

lifting, carrying, bending, pushing and pulling. Dr. Grossinger stated that as a consequence of 

her duties appellant developed radiating neck and low back complaints. He found that she had 

abnormal findings on her July 30, 2010 magnetic resonance imaging (MRI) scan which 

demonstrated disc protrusions at L4-5 and L5-S1. Dr. Grossinger noted that an electromyogram 

(EMG) reflected moderate right S1 radiculopathy. He reported that appellant’s examination was 

consistent with leg weakness, positive straight leg raising, sitting root signs and an inability to 

maintain a posture for a length of time. Dr. Grossinger also noted that her cervical spine 

demonstrated chronic cervical strain with muscle spasm and that a cervical MRI scan 

demonstrated straightening of normal cervical lordosis compatible with muscle spasm. He 

opined that appellant’s cumulative work as a mail handler gave rise to her neck and low back 

conditions including chronic somatic dysfunction of the cervical spine, tearing and protrusion of 

the annuli at L4-5 and L5-S1 with nerve injury. Dr. Grossinger recommended a two-level 

laminectomy discectomy and fusion and opined that she was currently totally disabled. 

Appellant testified at the oral hearing on May 19, 2011. She stated that she was hired as 

a mail hander on November 19, 1988. Appellant testified that she daily moved hundreds of 

sacks weighing between 20 and 80 pounds. She also noted that while operating the forklift she 

was also required to occasionally lift opened pallets of catalogs or other mail. Appellant stated 

that for the last two years of her employment she drove a tow motor on the high speed forklift in 

addition to unloading trucks including heavy sacks. She stopped work on June 16, 2010. 

Appellant stated that she developed pain in her neck and numbness in her hands. She stated that 
3

she was initially diagnosed with carpal tunnel syndrome. OWCP denied this claim from 

appellant, who noted that she worked at Wal-Mart in customer service from December 2009 

through February 2010. 

In a decision dated July 29, 2011, OWCP’s hearing representative remanded appellant’s 

claim for further development of the medical evidence such as referral to a second opinion 

physician. 

Dr. Grossinger submitted a July 30, 2010 MRI scan of appellant’s lumbar spine which 

demonstrated disc bulges at L4-5 and L5-S1 with straightening of the normal lordotic curvature 

compatible with muscle spasm. He also submitted a July 30, 2011 cervical MRI scan which 

demonstrated straightening of the normal cervical lordosis compatible with muscular spasm. In a 

note dated August 3, 2010, Dr. Grossinger reviewed the MRI scan and opined that her injuries 

were “directly referable” to her cumulative work at the employing establishment. He opined that 

appellant was totally disabled and recommended lumbar epidural steroidal injections. 

Dr. Grossinger stated that appellant’s cervical neck injury arose from cumulative inflammation 

and traction to her neck rather than mechanical compression in her cervical spine. 

OWCP referred appellant for a second opinion examination with Dr. Robert Allen Smith, 

a Board-certified orthopedic surgeon. In a report dated September 20, 2011, Dr. Smith reviewed 

the statement of accepted facts and the MRI scans. He diagnosed mild age-related degenerative 

disc disease. Dr. Smith noted that given the benign findings on MRI scan it was likely that 

Dr. Grossinger’s electrodiagnostic findings were false positive artifact. Appellant’s physical 

examination did not reveal spasm, atrophy, trigger points or deformity. Dr. Smith found normal 

range of motion of the neck and back with normal neurologic examination. He stated, “I see no 

evidence of any aggravation, precipitation or acceleration of [appellant’s] mild preexisting 

degenerative disease related to her federal employment and would consider the findings in her 

lumbar spine of some disc bulges as being preexisting and nonindustrial.” Dr. Smith opined that 

appellant could return to her date-of-injury position with no restrictions. 

In a decision dated November 25, 2011, OWCP denied appellant’s claim based on 

Dr. Smith’s report. Counsel requested an oral hearing on November 30, 2011. 

Dr. Jason Brajer, a Board-certified anesthesiologist, completed a report on June 29, 2011 

and diagnosed lumbar radiculopathy secondary to lumbar facet and S1 joint dysfunction. 

Dr. Grossinger reported on January 4, 20122

 his disagreement with Dr. Smith’s 

September 20, 2011 findings and conclusions. He noted that appellant had two disc bulges at 

L4-5 and L5-S1 without any other associated degenerative joint disease and that therefore there 

was no support on the MRI scan that the disc bulges were degenerative in etiology. 

Dr. Grossinger also noted that appellant’s EMG and nerve conduction study demonstrated 

moderate right S1 radiculopathy. 

 2

 The report is misdated as 2011, but as Dr. Smith did not examine appellant until August 2011 the Board is 

confident that Dr. Grossinger’s report is actually dated January 4, 2012. 
4

The Branch of Hearings and Review found that appellant’s claim was not in posture for a 

hearing on February 13, 2012 and remanded the claim for referral to an impartial medical 

specialist along with a statement of accepted facts and a list of specific questions. 

OWCP referred appellant to Dr. Andrew Gelman, a Board-certified orthopedic surgeon. 

The record contains an ME-M listing the physicians previously involved in the case dated May 9, 

2012, and the ME023 selecting Dr. Gelman dated May 17, 2012 and the appointment 

information listing Dr. Gelman’s name, address and the date and time of the scheduled 

examination. 

In a letter dated May 25, 2012, counsel requested that OWCP provide proof that 

Dr. Gelman was properly selected to serve as an impartial medical examiner. He requested 

iFECS screen shots and an imaging of the ME023 as well as the proper reasons for the bypasses 

of physicians who were selected on a strict rotational basis. OWCP responded on June 22, 2012 

and stated that Dr. Gelman was the first physician on the rotation, that he accepted the 

appointment and that there were no physicians bypassed. It provided a copy of the ME023. 

OWCP stated, “Although the screen shots were not saved, Medical Scheduler Alice Hannah has 

verified the above information.” 

Counsel again requested that the screen shot images of Dr. Gelman’s selection from the 

Physician’s Directory Service (PDS) be provided by letter dated July 3, 2012. He stated that he 

had an extreme concern about Dr. Gelman’s ability to provide an unbiased opinion given his 

experience with his prior reports. Counsel stated that confirmation of his proper selection from 

PDS was very important to appellant. 

Dr. Gelman completed a report on June 27, 2012 and provided his findings on physical 

examination noting that in the cervical area, motor strength was normal and light touch sensation 

was normal. He found that appellant’s lumbar spine was tender to the touch in the paravertebral 

muscles with tenderness over the right distal iliotibial band. Dr. Gelman found negative straight 

leg raising along with a slow and labored gait. He attributed appellant’s condition to aging 

disease and morbid obesity. Dr. Gelman diagnosed neck and back pain as a result of mild 

degenerative disease. He concluded that appellant’s conditions were not related to her 

employment. Dr. Gelman stated, “As far as [appellant’s] employment as a mail handler, the 

repetition and/or cumulative nature of her requirement are noted, though I would not be able to 

directly attribute the work requirements and [appellant’s] symptomatology. It is my opinion that 

difficulties are more so attributable to the natural aging process in this poorly conditioned, 

morbidly obese individual.” He opined that appellant could return to her date-of-injury position 

based on her independent tolerance to function within the job description. 

OWCP denied appellant’s claim by decision dated November 1, 2012 relying on 

Dr. Gelman’s report. 

Counsel requested an oral hearing on November 8, 2012. Dr. Grossinger completed a 

report dated December 6, 2012 and disagreed with Dr. Gelman’s findings and conclusions. He 

stated that appellant’s objective clinical and supportive neurological testing was indicative of 

cervical radiculopathy, cervical facet syndrome, lumbar radiculopathy and lumbar facet 
5

syndrome related to her federal employment. Dr. Grossinger further opined that appellant was 

totally disabled. 

Counsel appeared at the oral hearing on March 26, 2013 and argued that, without the 

screen shots of Dr. Gelman’s selection, there was no adequate proof that he was properly 

selected. 

By decision dated June 12, 2013, OWCP’s hearing representative found that the medical 

evidence did not establish a cervical or lumbar condition causally related to appellant’s 

employment. 

LEGAL PRECEDENT 

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides 

that, 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 who shall make 

an examination and resolve the conflict of medical evidence.3 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.4

A physician selected by OWCP to serve as an impartial medical specialist should be one 

wholly free to make a completely independent evaluation and judgment. In order to achieve this, 

OWCP has developed specific procedures for the selection of the impartial medical specialist 

designed to provide adequate safeguards against any possible appearance that the selected 

physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial 

medical specialist will be selected on a strict rotating basis in order to negate any appearance that 

preferential treatment exists between a particular physician and OWCP.5 

The Medical Management Application (MMA), which replaced the PDS, allows users to 

access a database of Board-certified specialist physicians and is used to schedule referee 

examination. The application contains an automatic and strict rotational scheduling feature to 

provide for consistent rotation among physicians and to record the information needed to 

document the selection of the physician. If an appointment cannot be scheduled in a timely 

manner, or cannot be scheduled for some other reason such as a conflict or the physician is of the 

wrong specialty, the scheduler will update the application with an appropriate bypass code. 

Upon the entering of a bypass code, the MMA will select the next physician in the rotation.6

 3

 5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007). 

4 R.C., 58 ECAB 238 (2006). 

5 J.N., Docket No. 13-289 (November 15, 2013); C.P., Docket No. 10-1247 (issued September 28, 2011); 

Raymond J. Brown, 52 ECAB 192 (2001). 

6

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Chapter 3.500.5 (December 2012); see also R.C., Docket 

No. 12-468 (issued October 15, 2012) (where the Board first discussed the application of the MMA and found that 

appellant’s reasons for objecting to the list of impartial medical specialists provided by OWCP were not valid). 
6

ANALYSIS 

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

Dr. Gelman was selected as an impartial medical examiner in a fair and unbiased manner. 

It is well established that OWCP has an obligation to verify that it selected Dr. Gelman in 

a fair and unbiased manner. It maintains records for this very purpose.7

 The current record 

includes a May 17, 2012 Form ME023 report and an appointment information sheet that lists 

Dr. Gelman as the selected physician. The record also contains a Form ME-M which listed 

previous physicians involved in the case. There are no other documents, screen captures or any 

other evidence to establish how the MMA system was used to select the referee physician. 

Board case law provides that a Form ME023 is not sufficient documentation that OWCP 

properly followed its selection procedures.8

 

The Board has placed great importance on the appearance as well as the fact of 

impartiality, and only if the selection procedures which were designed to achieve this result are 

scrupulously followed may the selected physician carry the special weight accorded to an 

impartial specialist.9

 OWCP has not met its affirmative obligation to establish that it properly 

followed its selection procedures.10 

The Board will remand the case to OWCP for proper selection of a referee physician. 

After such further development as necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that the case is not in posture for a decision as to whether appellant has 

met her burden of proof in establishing a back condition as a result of her federal job duties. 

 7 M.A., Docket No. 07-1344 (issued February 18, 2008). 

8 J.N., supra note 5; L.M., Docket No. 12-1396 (issued January 25, 2013); D.A., Docket No. 12-311 (issued 

July 25, 2012); C.P., supra note 5, petition for recon. denied, Docket No. 10-1247 (issued May 15, 2012). 

9 See D.M., Docket No. 11-1231 (issued January 25, 2012); D.L., Docket No. 11-660 (issued October 25, 2011). 

10 M.A., supra note 7. 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 12, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further development of 

the medical evidence in accordance with this decision. 

Issued: March 11, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board