United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Sacramento, CA, Employer 

__________________________________________ 

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Docket No. 15-0893 

Issued: July 20, 2015 

Appearances: Case Submitted on the Record

Sally F. LaMacchia, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 11, 2015 appellant, through counsel, filed a timely appeal from the January 21, 

2015 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 review the merits of this case. 

ISSUE 

The issue is whether appellant’s medical condition or wage loss after March 28, 2008 

was causally related to the June 11, 2003 work injury. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts and circumstances as outlined 

in the prior Board decisions are incorporated herein. 

 1

 5 U.S.C. § 8101 et seq.
2

On June 11, 2003 appellant, a 51-year-old casual clerk, sustained a traumatic injury in the 

performance of duty when some carts (metal cages on wheels) were pushed in her direction and 

one of them struck her left arm, which she extended to push against the carts. OWCP accepted 

her claim for left shoulder/arm strain and cervical strain. 

In a decision dated October 6, 2009,2 the Board found that OWCP had properly 

terminated compensation for the accepted muscle strains. The Board also found that appellant 

had not met her burden to establish a medical condition or disability causally related to the 

June 11, 2003 work injury. 

In decisions dated December 2, 20113

 and November 14, 2013,4 the Board again found 

that appellant had not met her burden to establish that her medical condition or disability after 

March 28, 2008 was causally related to the June 11, 2003 work injury. 

OWCP received a December 27, 2013 progress report from Dr. Patrick N. Rhoades, the 

attending Board-certified physiatrist and specialist in pain medicine. Dr. Rhoades examined 

appellant and diagnosed lumbago, low back pain. Appellant was to continue her current 

medications. 

On February 20, 2014 OWCP denied a merit review of appellant’s case. By decision 

dated October 22, 2014, the Board found that OWCP had acted prematurely, as appellant had not 

requested reconsideration. 

On October 24, 2014 appellant requested that OWCP reconsider the Board’s 

November 14, 2013 decision.5

 She asserted that the issue continued to be whether OWCP met 

its burden of proof to terminate her medical and wage-loss benefits after March 28, 2008 based 

on the second-opinion report of Dr. Alice Martinson, a Board-certified orthopedic surgeon and 

referral physician. Appellant argued that Dr. Martinson’s opinion on the issue of cervical cancer 

could not justly be given weight to terminate medical and wage-loss benefits. Dr. Martinson was 

not an oncologist, and her opinion regarding appellant’s cancer was in stark and complete 

conflict with that of Dr. Vikas Mahavni, the treating Board-certified obstetrician and 

gynecologist with a subspecialty in oncology. Further, Dr. Rhoades also disagreed with 

Dr. Martinson. Yet appellant argued that OWCP had declined to further develop these medical 

facts. She argued that Dr. Martinson’s opinion was clearly inadequate to meet OWCP’s burden. 

Based on the reports of Drs. Rhoades, Mahavni, and Martinson, appellant requested a merit 

decision. 

 2

 Docket No. 09-646 (issued October 6, 2009). 

3

 Docket No. 11-1117 (issued December 2, 2011). 

4

 Docket No. 13-1315 (issued November 14, 2013). 

5

 The Board notes that OWCP has no such jurisdiction. See 20 C.F.R. § 501.6(d), which states in pertinent part: 

“The decisions and orders of the Board are final as to the subject matter appealed, and such decision and orders are 

not subject to review, except by the Board.” 
3

In a decision dated January 21, 2015, OWCP reviewed the merits of appellant’s case and 

denied modification of its prior decision. It noted, among other things, that the accepted 

conditions were orthopedic in nature, and therefore Dr. Martinson was an appropriate specialist 

to provide an opinion with respect to the accepted medical conditions. OWCP found no conflict 

in the medical opinion evidence warranting referral to an impartial medical specialist under 

5 U.S.C. § 8123(a). It further found that Dr. Martinson’s opinion continued to represent the 

weight of the medical opinion evidence. In summary, the evidence supported that OWCP met its 

burden to terminate appellant’s compensation and medical benefits. Additionally, OWCP found 

that the latest report from Dr. Rhoades, the December 27, 2013 progress report, did not support 

that she continued to suffer residuals of the June 11, 2003 work injury. 

On appeal, appellant’s counsel contends that OWCP has refused to properly develop 

medical evidence, depriving appellant of the fairness of process that is due her under FECA. She 

argues that OWCP’s burden to terminate appellant’s benefits was not met. Appellant’s counsel 

seeks an order from the Board that directs OWCP to fully resolve the reason for appellant’s 

ongoing and indisputably present residual symptoms. She contends that her argument that 

Dr. Martinson’s opinion on cancer cannot be given decisive weight has not been addressed. 

Appellant’s counsel also contends that appellant’s argument that once OWCP sets out to procure 

a medical opinion, it must fully develop that opinion and resolve the outstanding issues has also 

not been addressed. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of his or her duty.6 Where OWCP meets its burden of 

proof to justify the termination of compensation benefits, the burden switches to the claimant to 

establish that any subsequent medical condition or disability is causally related to the accepted 

employment injury.7

The claimant must submit a rationalized medical opinion that supports a causal 

connection between her current condition or disability and the employment injury. The medical 

opinion must be based on a complete factual and medical background with an accurate history of 

the employment injury, and must explain from a medical perspective how the current disabling 

condition is related to the injury.8

 6

 5 U.S.C. § 8102(a). 

7 Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of compensation payments, warranted on the 

basis of the medical evidence, the burden shifts to the claimant to show by the weight of the reliable, probative and 

substantial evidence that, for the period for which he claims compensation, he had a disability causally related to the 

employment resulting in a loss of wage-earning capacity); Maurice E. King, 6 ECAB 35 (1953). 

8 John A. Ceresoli, Sr., 40 ECAB 305 (1988). 
4

ANALYSIS 

Although the issue in this case is a medical issue, appellant submitted no medical opinion 

evidence to support her October 24, 2014 reconsideration request. Instead, appellant’s counsel 

offered a legal argument that this Board has already addressed and found to be insufficient. 

Counsel continues to assert that the issue is whether OWCP met its burden of proof to 

terminate her compensation after March 28, 2008, but this was previously decided. The Board 

settled this matter in its October 6, 2009 decision when it found that the weight of the medical 

evidence established that appellant no longer suffered from the accepted left shoulder/arm or 

cervical strain she sustained on June 11, 2003. 

The matter has thus been adjudicated. Decisions and orders of the Board are final as to 

the subject matter appealed.9 With respect to the findings made in the Board’s October 6, 2009 

decision, those matters are res judicata absent any further review by OWCP under section 8128 

of FECA.10 

On appeal, appellant argues that once OWCP sets out to procure a medical opinion, it 

must fully develop that opinion and resolve the outstanding issues. Indeed, the Board has held 

that OWCP has the responsibility to obtain from its referral physician an evaluation that will 

resolve the issue involved in the case.11 When OWCP referred appellant to Dr. Martinson, the 

issue was whether appellant continued to suffer from the left shoulder/arm strain or cervical 

strain she sustained on June 11, 2003. Dr. Martinson offered a probative opinion on that issue, 

an opinion that was sufficient to resolve the issue presented, and the Board so held. The matter 

was adjudicated. Appellant seeks an order from the Board that directs OWCP to fully resolve 

the reason for her ongoing symptoms, but she has the burden of proof and the burden of going 

forward with the evidence. OWCP properly resolved whether she continues to suffer from the 

accepted muscle strains, and there is no conflict that warrants referral to an impartial medical 

specialist. Appellant may not use Dr. Martinson’s immaterial remarks on ovarian cancer to place 

a broad burden on OWCP to develop the reason for her ongoing symptoms. 

CONCLUSION 

The Board finds that appellant has failed to meet her burden to establish that her medical 

condition or wage loss after March 28, 2008 was causally related to the June 11, 2003 work 

injury. 

 9

 20 C.F.R. § 501.6(d). 

10 Hugo A. Mentink, 9 ECAB 628 (1958); see also Robert G. Burns, 57 ECAB 657 (2006). 

11 Mae Z. Hackett, 34 ECAB 1421, 1426 (1983); Richard W. Kindler, 32 ECAB 863, 866 (1981) (noting that the 

report of an OWCP referral physician did not resolve the issue in the case). 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 21, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 20, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board