United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pembroke Pines, FL, Employer 

__________________________________________ 

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Docket No. 15-0979 

Issued: August 27, 2015 

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 26, 2015 appellant, through counsel, filed a timely appeal from a 

September 30, 2014 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 the case.2

ISSUE 

The issue is whether appellant met her burden of proof to establish total disability 

beginning February 21, 2010 causally related to her accepted condition. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 

501.3(e)-(f). One hundred and eighty days from September 30, 2014, the date of OWCP’s last decision, is 

March 29, 2015. Since using March 31, 2015, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the 

U.S. Postal Service postmark is March 26, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

FACTUAL HISTORY 

This is the second appeal before the Board. In a May 16, 2014 decision, the Board set 

aside an OWCP decision dated January 22, 2013 and remanded the claim for further medical 

development.3 The Board found that there was a conflict in medical opinion between Dr. Peter J. 

Millheiser, OWCP’s referral physician, and Dr. Eddie Sassoon, appellant’s treating physician, 

regarding whether appellant had residuals of her accepted back contusion and whether she could 

return to work.4 The Board instructed OWCP to refer her to a referee physician to resolve the 

conflict of opinion. The facts and circumstances of the case up to that point are set forth in the 

Board’s prior decision and are incorporated herein by reference.5 

To resolve the conflict, on August 8, 2014, OWCP referred appellant to Dr. Orestes G. 

Rosabal, a Board-certified orthopedist. In a September 10, 2014 report, Dr. Rosabal noted 

reviewing the record and a history of her work-related injury and conducted an examination. 

Physical examination of the thoracolumbar spine revealed unrestricted motion without any 

significant pain behavior, mild tenderness along the midline from L4 to the coccyx, bilateral 

negative straight leg raises, and no focal motor or sensory deficits in the legs. Lower extremity 

deep tendon reflexes at the knees and ankles were absent without pathological reflexes. 

Dr. Rosabal opined that appellant’s lumbar contusion had resolved without residuals. He noted 

that appellant reported persistent, significant low back pain on a fairly regular basis with 

significant ongoing right shoulder pain. Dr. Rosabal advised that these comments, coupled with 

her fairly benign physical findings, were consistent with symptom magnification. He noted that 

x-rays of the thoracolumbar spine revealed evidence of multilevel degenerative disc disease in 

the upper third and lower third of the thoracic spine with no other abnormalities. Dr. Rosabal 

diagnosed resolved lumbar contusion related to the December 4, 2009 incident, chronic low back 

pain associated with multiple lumbar disc herniations noted on a June 10, 2010 magnetic 

resonance imaging (MRI) scan, and symptom magnification. He noted the physical examination 

revealed appellant’s cervical spine and right shoulder examination was completely benign. 

Dr. Rosabal opined that based on his review of appellant’s x-ray, lumber MRI scan reports, and 

medical records and the statement of accepted facts, he did “not have any significant objective 

conclusions that would support” appellant’s disability from February 21, 2010 through 

May 6, 2011. He further opined that it was more likely than not that appellant was capable of 

working as a mail processing clerk during that period. Dr. Rosabal advised that the lumbar 

contusion had resolved without residuals. 

In a September 30, 2014 decision, OWCP denied appellant’s claim for wage loss on or 

after February 21, 2010 based on Dr. Rosabal’s report finding no basis to support work-related 

disability after February 21, 2010. 

 3

 Docket No. 13-1787 (issued May 16, 2014). 

4

 Dr. Sassoon consistently supported work-related disability and restrictions related to appellant’s lumbar 

condition, while Dr. Millheiser found that appellant has no work-related residuals of the accepted injury and could 

return to full-time work. Therefore, the Board found that a conflict in medical opinion existed. 

5

 On December 4, 2009 appellant, then a 44-year-old mail processing clerk, injured her back when she fell on the 

workroom floor. OWCP accepted a contusion of the back. 
3

LEGAL PRECEDENT 

A claimant has the burden of proof to establish that he or she is disabled for work as a 

result of an accepted employment injury and submit medical evidence for each period of 

disability claimed.6 Whether a particular injury causes an employee to be disabled for 

employment and the duration of that disability are medical issues.7 The issue of whether a 

particular injury causes disability for work must be resolved by competent medical evidence.8

 

To meet this burden, a claimant must submit rationalized medical opinion evidence, based on a 

complete factual and medical background, supporting a causal relationship between the alleged 

disabling condition and the accepted injury.9

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 

compensation entitlement. For each period of disability claimed, the employee has the burden of 

proof to establish that he or she was disabled for work as a result of the accepted employment 

injury.10

Section 8123 of FECA 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.11 When 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.12

ANALYSIS 

OWCP accepted appellant’s claim for contusion of the low back. Appellant stopped 

work on February 21, 2010 and claimed wage-loss compensation. OWCP denied her wage-loss 

claim for the period beginning February 21, 2010 based on the opinion of Dr. Millheiser, a 

second opinion physician. The Board found a conflict in medical opinion between appellant’s 

 6 See Fereidoon Kharabi, 52 ECAB 291 (2001). 

7 Id. 

8 See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

9 C.S., Docket No. 08-2218 (issued August 7, 2009). 

10 Sandra D. Pruitt, 57 ECAB 126 (2005). 

11 5 U.S.C. § 8123. 

12 James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB 

537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360 

(2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager, 54 ECAB 317 (2003); Barry Neutuch, 

54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002). 
4

treating physician and the second opinion physician as to whether appellant had work-related 

disability and restrictions related to her lumbar condition. To resolve the conflict, it properly 

referred her to Dr. Rosabal for an impartial examination and relied on his opinion to find that her 

disability as of February 21, 2010 was not causally related to her accepted lumbar contusion. 

The Board finds that the opinion of Dr. Rosabal is sufficiently well rationalized and 

based upon a proper factual background such that it is entitled to special weight and establishes 

that appellant’s total disability as of February 21, 2010 was not causally related to her accepted 

low back condition. As noted, where there exists a conflict of medical opinion and the case is 

referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized, and based upon a proper factual background, is 

entitled to special weight.13

Dr. Rosabal provided findings on examination and conducted a thorough review of 

appellant’s medical treatment. In his September 10, 2014 report, he diagnosed resolved lumbar 

contusion related to the incident on December 4, 2009 and chronic low back pain associated with 

multiple disc herniations. Dr. Rosabal conducted a thorough physical examination which 

revealed no deficits. He noted that x-rays of the thoracolumbar spine revealed evidence 

multilevel degenerative disc disease, but found no basis on which to support appellant’s 

disability from February 21, 2010 through May 6, 2011. Dr. Rosabal further opined that it was 

more likely than not that she was capable of working as a mail processing clerk during that 

period. He noted that he based his opinion on his judgment and experience, his review of 

appellant’s x-rays and lumbar MRI scan reports, his review of her history, and the fairly benign 

physical findings. 

The Board has carefully reviewed Dr. Rosabal’s opinion and notes that it has reliability, 

probative value, and convincing quality with respect to his conclusions regarding the relevant 

issue in this case. Dr. Rosabal’s opinion is sufficiently rationalized and based on a proper factual 

and medical history in that he reviewed the medical record and statement of accepted facts, and 

provided a thorough and factual medical history. His report is entitled to special weight with 

regard to establishing whether appellant’s disability as of February 21, 2010 was causally related 

to her work injury. Consequently, OWCP properly denied her claim for wage-loss compensation 

beginning February 21, 2010. 

On appeal appellant asserts that OWCP’s decision was incorrect and based upon flawed 

findings of fact and conclusions of law as the referee physician noted herniated discs on an MRI 

scan of the lumbar spine, but did not address whether the herniated discs were work related. The 

Board notes that Dr. Rosabal advised that thoracolumbar x-rays performed for him showed 

degenerative disc disease, but these conditions were not attributed to appellant’s employment. 

OWCP has not accepted the herniated discs as employment related.14 

 13 Id. See 5 U.S.C. § 8123(a). 

14 Where an employee claims that a condition not accepted or approved by OWCP was due to an employment 

injury, he or she bears the burden of proof to establish that the condition is causally related to the employment 

injury. Jaja K. Asaramo, 55 ECAB 200 (2004). 
5

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 appellant has failed to establish that his disability for the period 

beginning February 21 to July 23, 2010 is causally related to the accepted employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 30, 2014 is affirmed. 

Issued: August 27, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board