United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jacksonville, FL, Employer 

__________________________________________ 

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Docket No. 15-1498 

Issued: October 16, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 1, 2015 appellant, through counsel, filed a timely appeal from a March 26, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish disability 

beginning July 5, 2008 causally related to his May 14, 2008 employment injury. 

FACTUAL HISTORY 

 This case has previously been before the Board.2

 OWCP accepted that on May 14, 2008 

appellant, then a 46-year-old mail handler, sustained a low back contusion after he was struck 

 1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 10-382 (issued October 18, 2010). 
2

from behind by a general purpose container. Appellant stopped work on May 21, 2008 and did 

not return. He received continuation of pay from May 12 through July 4, 2008. 

By decisions dated July 24 and October 19, 2009, OWCP denied appellant’s claim for 

wage-loss compensation beginning July 5, 2008 causally related to the accepted May 14, 2008 

low back contusion. Appellant appealed to the Board on November 25, 2009. 

In a decision dated October 18, 2010, the Board set aside the July 24 and October 19, 

2009 OWCP decisions denying appellant’s claim for disability compensation finding that the 

reports from Dr. John E. Carey, the attending Board-certified anesthesiologist, were sufficient to 

warrant further development of the evidence.3

 The Board instructed OWCP, on remand, to 

further develop the medical evidence. The facts and circumstances as set forth in the prior 

decision of the Board are incorporated by reference. 

On November 24, 2010 OWCP requested that Dr. Carey provide an updated opinion. 

In a December 17, 2010 response, Dr. Carey referred OWCP to his initial evaluation 

reports. 

In a progress report dated January 28, 2011, Dr. Carey evaluated appellant. He attributed 

the diagnosed conditions to the May 14, 2008 employment injury. Dr. Carey provided findings 

on examination and diagnosed cervical and lumbar disc displacement without myelopathy, 

sciatica, lumbago, and brachial neuritis. He provided similar progress reports dated 2011 to 

2013. 

Electrodiagnostic studies obtained on March 7, 2011 yielded normal findings. 

On April 22, 2011 OWCP referred appellant to Dr. Steven J. Lancaster, a Board-certified 

orthopedic surgeon, for a second opinion examination. It prepared a statement of accepted facts 

indicating that it had accepted the claim for a back contusion and noting that he had previously 

injured his neck and lower back in February 1995, May 1997, and August 2005 motor vehicle 

accidents. OWCP advised that appellant had not submitted any medical records regarding his 

prior injuries. 

In a report dated June 15, 2011, Dr. Lancaster opined that appellant’s back contusion had 

resolved within a few months of his injury. He diagnosed lumbar spondylosis and a lumbar and 

cervical herniated nucleus pulposus that preexisted the May 14, 2008 work injury. Dr. Lancaster 

noted that the statement of accepted facts did not list an aggravation of a preexisting cervical disc 

herniation as an accepted condition. He concluded that the L4-5 herniated disc was unrelated to 

 3

 In a report dated July 29, 2009, Dr. Carey discussed his treatment of appellant in 2005 for the effects of motor 

vehicle accidents in 1995, 1999, and 2004. He advised that at the end of treatment in 2006 appellant had few 

symptoms. Dr. Carey examined appellant on June 4, 2008 and found muscle spasms, a positive straight leg raise 

and limited cervical and lumbar range of motion. He obtained diagnostic studies which he found showed a new 

central disc herniation at L4-5 effacing the thecal sac and corresponding to appellant’s complaints of left lower 

radiculopathy. Dr. Carey also found an acute progression of a preexisting disc herniation at C4-5 without acute 

impingement. He concluded that appellant sustained new injuries due to his May 14, 2008 employment injury. 
3

the accepted employment injury. Dr. Lancaster found that appellant had work restrictions as the 

result of nonemployment-related conditions. 

On August 12, 2011 OWCP requested that Dr. Lancaster address the issue of whether 

appellant sustained an aggravation of a preexisting cervical disc herniation due to the May 14, 

2008 work injury. In an August 24, 2011 response, Dr. Lancaster advised that “a blow to the 

lumbar spine would not normally cause a condition in the neck unless it was a severe whiplashtype phenomenon, which does not appear to have been what was described. As such I do not 

believe that there was any aggravation of a preexisting cervical disc herniation by history and 

available medical records.” Dr. Lancaster opined that appellant’s back contusion “would have 

healed by the date of the original report in June 2011 and as such any restrictions that are placed 

are based on his preexistent problems.” 

On October 28, 2011 OWCP determined that a conflict existed between Dr. Carey and 

Dr. Lancaster regarding the diagnosed conditions due to the May 14, 2008 injury and whether 

appellant had any further disability due to the injury. It referred him to Dr. Robert Elkins, a 

Board-certified orthopedic surgeon, for an impartial medical examination. 

In a report dated December 8, 2011, Dr. Elkins reviewed appellant’s history of injury and 

noted that his prior low back problems had required him to use a cane from 1995 until 2005. He 

also discussed the medical evidence of record and his current complaints of back pain radiating 

into the left lower extremity with numbness in his toes and foot. On examination Dr. Elkins 

provided range of motion findings and found a nonphysiologic loss of sensation of the right 

lower extremity. He diagnosed chronic low back pain, lumbar strain, a possible L4-5 herniated 

disc, possible spondylosis, moderate symptom magnification, and a herniated cervical disc not 

accepted as work related. Dr. Elkins related, “I really cannot state that the accepted conditions 

are still prevalent in [appellant]. A lumbar sprain certainly should have resolved by this time. 

His findings are mixed with moderate symptom magnification and pain accentuation, but he does 

have some objective findings on imaging studies. I feel that his lumbar sprain has resolved.” He 

further stated, “I do not feel [appellant’s] cervical spine is related in any way to his lumbar spine. 

I do not feel a blow in the back would cause the symptoms he is complaining of.” Regarding 

whether the L4-5 disc herniation resulted from the May 14, 2008 work injury, Dr. Elkins related, 

“This is difficult to state whether it was preexisting or not. [Appellant] has a prolonged history 

of low back pain, chronic low back pain, and the age of this herniated disc on his imaging studies 

is difficult to determine.” He advised that appellant’s subjective complaints outweighed the 

objective findings. In response to the question of whether appellant had limitations from his 

accepted work injury, Dr. Elkins opined that appellant could work with restrictions. 

By decision dated September 27, 2013, OWCP denied appellant’s claim for disability 

beginning July 5, 2008. It found that Dr. Elkins’ opinion represented the weight of the evidence 

and established that his current conditions were unrelated to his work injury. 

On October 3, 2013 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. 

Following a preliminary review of the record, in a decision dated February 10, 2014, an 

OWCP hearing representative set aside the September 27, 2013 decision. She found that 
4

Dr. Elkins provided insufficient rationale for his opinion. The hearing representative instructed 

OWCP to obtain a supplemental report from Dr. Elkins addressing whether the accepted 

condition had resolved, whether the work injury aggravated appellant’s preexisting cervical 

condition, whether it caused the herniated lumbar disc, and whether he had any disability 

beginning July 2008. 

On February 19, 2014 OWCP requested that Dr. Elkins clarify his opinion. 

In a supplemental report dated February 20, 2014, Dr. Elkins advised that he did not 

believe that appellant’s neck condition was due to the 2008 employment injury to his low back. 

In answer to the question posed by OWCP regarding whether the May 14, 2008 employment 

injury aggravated a preexisting condition, he related: 

“Low back pain, degenerative disc disease, and degenerative arthritis are 

conditions which tend to progress, recur, and most of the time get worse with age. 

[W]hether or not he had a herniated disc on a prior [magnetic resonance imaging] 

MRI [scan] from the prior incidences is unknown, but he had use of a cane, had 

multiple invasive treatments and in looking back at his records I feel that his prior 

conditions appear to be moderately severe and certainly need to be taken into 

consideration when looking at the July 2008 report.” 

Dr. Elkins further stated: 

“There is always a possibility that there was an aggravation of a preexisting 

problem, however [appellant’s] aggravation appears to be mostly subjective in 

nature and some of this is nonphysiologic in nature and, if the only accepted 

diagnosis is a lumbar sprain, then this should have resolved. I feel this was an 

exacerbation of his problems causing a temporary increase in symptomatology, 

and I cannot state that his lumbar sprain caused any permanent aggravation to his 

underlying condition.” 

Dr. Elkins noted that the herniated disc demonstrated on MRI scan was the sole objective 

finding and may well have been present prior to the work injury. He advised that he could 

identify whether the disc herniation was preexisting by reviewing an MRI scan that predated 

2008. Dr. Elkins concluded, “I feel the aggravation was temporary, and feel the aggravation to 

[appellant’s] low back ceased on March 27, 2011, after his normal electrodiagnostic studies.” 

On March 12, 2014 OWCP requested that appellant provide records documenting his 

medical treatment prior to 2008, including any MRI scan studies of his back. 

In a decision dated June 6, 2014, OWCP denied appellant’s claim for compensation for 

disability beginning July 5, 2008. 

On June 13, 2014 appellant, through counsel, requested a telephone hearing. At the 

telephone hearing, held on January 13, 2015, appellant related that he sustained additional 

injuries to his left shoulder and teeth on May 14, 2008. The hearing representative requested that 

he provide medical records addressing his neck and back condition prior to May 14, 2008. 
5

In a report dated August 15, 2013, received by OWCP on March 10, 2015, Dr. Kevin 

Murphy, a Board-certified orthopedic surgeon, evaluated appellant for pain in his left shoulder.4

 

He obtained a history of symptoms “present since 2008 when he smashed his arm between two 

containers.” Dr. Murphy diagnosed shoulder osteoarthritis, a rotator cuff tear, tendinitis/bursitis 

of the rotator cuff, shoulder synovitis, and shoulder impingement.5

 On September 26, 2013 

Dr. Stephan Esser, a Board-certified physiatrist, diagnosed left shoulder pain, impingement, and 

synovitis. He noted that appellant provided a history of shoulder problems after a May 2008 

employment injury. 

By decision dated March 26, 2015, an OWCP hearing representative affirmed the June 6, 

2014 decision, relying on the report of Dr. Elkins. 

LEGAL PRECEDENT 

The term disability as used in FECA6 means the incapacity because of an employment 

injury to earn the wages that the employee was receiving at the time of injury.7 Whether a 

particular injury caused an employee disability for employment is a medical issue which must be 

resolved by competent medical evidence.8 When the medical evidence establishes that the 

residuals of an employment injury are such that, from a medical standpoint, they prevent the 

employee from continuing in the employment held when injured, the employee is entitled to 

compensation for any loss of wage-earning capacity resulting from such incapacity.9 The Board 

will not require OWCP to pay compensation for disability in the absence of any medical 

evidence directly addressing the specific dates of disability for which compensation is claimed. 

To do so would essentially allow employees to self-certify disability and entitlement to 

compensation.10

Section 8123(a) 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 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

 4

 In a report dated November 24, 2014, Dr. Kent New, a Board-certified neurosurgeon, diagnosed chronic pain 

syndrome. He noted that appellant had received a pain pump one month earlier. 

5

 The record also contains reports from a physician assistant dated September 12, 2013 and January 8, 2014. 

6

 5 U.S.C. § 8101 et seq.; 20 C.F.R. § 10.5(f). 

7 Paul E. Thams, 56 ECAB 503 (2005). 

8 Id. 

9 Id. 

10 William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001). 

11 5 U.S.C. § 8123(a). 
6

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.

12

OWCP’s procedures provide: 

“If the referral specialist submits an opinion which is equivocal, lacks rationale, or 

fails to address the specified medical issues or conflict, the CE [claims examiner] 

should seek clarification or further rationale from that physician. When the 

OWCP undertakes to develop the evidence by referring the case to an [OWCP]-

selected physician, it has the obligation to seek clarification from that physician 

upon receiving a report that did not adequately address the issues that OWCP 

sought to develop. As such, the CE should seek clarification from the referee 

physician and request a supplemental report to clarify specially noted 

discrepancies or inadequacies in the initial report. 

“Only if the referee physician does not respond, or does not provide a sufficient 

response after being asked, should the CE request a new referee examination.”13

ANALYSIS 

OWCP accepted that appellant sustained a low back contusion as the result of a May 14, 

2008 work injury. On prior appeal, the Board found that the opinion of Dr. Carey was sufficient 

to warrant further development to determine whether he sustained an aggravation of a 

preexisting cervical disc herniation or a herniated lumbar disc due to the work injury and, if so, 

any disability. Following development of the evidence, OWCP found that a conflict existed 

between Dr. Carey, an attending physician, and Dr. Lancaster, an OWCP referral physician, 

regarding whether appellant sustained a herniated lumbar disc and an aggravation of a 

preexisting cervical disc herniation causally related to his May 14, 2008 employment injury. It 

referred him to Dr. Elkins, a Board-certified orthopedic surgeon, for an impartial medical 

examination. 

When a case is referred to an impartial medical examiner for the purpose of resolving a 

conflict, the opinion of such specialist, if sufficiently well rationalized and based on a prior 

factual and medical background, must be given special weight.14 The Board finds, however, that 

Dr. Elkins’ opinion is insufficient to resolve the conflict in medical opinion. In his December 8, 

2011 report, Dr. Elkins discussed appellant’s history of back problems necessitating the use of a 

cane from 1995 to 2005. He diagnosed chronic low back pain, lumbar strain, a possible 

herniated disc at L4-5, possible spondylosis, a herniated cervical disc, and moderate symptoms 

magnification. Dr. Elkins found that appellant’s cervical condition was unrelated to the May 14, 

2008 employment injury. He advised that the lumbar sprain had resolved and that it was 

“difficult to state” whether the disc herniation at L4-5 occurred before the May 14, 2008 work 

 12 20 C.F.R. § 10.321. 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810(11)(e) (September 2010). 

14 See M.M., Docket No. 15-0979 (issued August 27, 2015); James F. Weikel, 54 ECAB 660 (2003). 
7

injury. In response to OWCP’s question regarding whether appellant had restrictions due to the 

accepted injury, Dr. Elkins responded that appellant could work with restrictions. 

In a decision dated February 10, 2014, an OWCP hearing representative determined that 

Dr. Elkins’ December 8, 2011 report was insufficiently rationalized to resolve the conflict of 

medical opinion. Based on the hearing representative’s instructions on February 19, 2014, 

OWCP requested that Dr. Elkins provide a rationalized opinion regarding whether appellant’s 

May 14, 2008 employment injury aggravated a preexisting cervical condition, whether he 

sustained a herniated disc due to the work injury, and whether any employment-related cervical 

or lumbar condition caused disability beginning July 2008. 

In the supplemental report, Dr. Elkins indicated that appellant’s neck condition was 

unrelated “to his low back incident in 2008 as stated in the original report.” He found that the 

issue of whether appellant sustained a herniated disc due to the injury could be resolved by 

looking at an MRI scan study that predated the injury. Dr. Elkins noted that he had an extensive 

history of back problems before the May 14, 2008 injury and elements of symptoms 

magnification on examination. He found that the lumbar sprain had not permanently aggravated 

any underlying condition. Dr. Elkins opined that the temporary aggravation of appellant’s 

preexisting condition due to his May 2008 work injury ceased on March 27, 2011. 

Dr. Elkins’ opinion is insufficient to resolve the conflict in medical opinion. The Board 

notes that Dr. Elkins identified the accepted condition as a lumbar strain rather than a lumbar 

contusion. Consequently, Dr. Elkins did not directly address the issue of whether appellant had 

any disability due to his accepted condition as requested by OWCP. 

Dr. Elkins further found that it was difficult to determine whether the employing injury 

caused the disc herniation at L4-5, particularly without reviewing MRI scan studies from before 

May 2008. He advised that appellant’s lumbar strain, which he incorrectly identified as the 

accepted condition, did not cause a permanent aggravation of his lumbar condition. Dr. Elkins 

found, however, that he had a temporary aggravation of an unspecified lumbar condition that 

resolved on March 27, 2011. His opinion is equivocal regarding whether appellant sustained an 

additional condition due to the May 14, 2008 employment injury. Dr. Elkins also appears to find 

that appellant had disability due to the employing injury until March 27, 2011 without providing 

any rationale for his opinion. 

Appellant has the burden to establish that he sustained additional employment-related 

conditions and disability beginning July 5, 2008. Once OWCP undertakes development of a 

claim, however, it has the burden to resolve the relevant issue in the case.15 As noted above in 

OWCP’s procedures, as well as in Board precedent,16 when OWCP obtains an opinion from an 

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

the specialist’s opinion requires clarification or elaboration, it must secure a supplemental report 

from the specialist to correct the defect in his original report. When the impartial specialist is 

unable to clarify or elaborate on his original report or if his supplemental report does not 

 15 See Richard F. Williams, 55 ECAB 343 (2004). 

16 See Harold Travis, 30 ECAB 1071, 1078 (1979). 
8

sufficiently address the issues, OWCP should refer the claimant to a second impartial 

specialist.17 On remand, OWCP should refer appellant to a new impartial medical examiner to 

resolve the issues of whether he sustained any periods of employment-related disability. 

Following such development as deemed necessary, it should issue a de novo decision.18

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the March 26, 2015 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: October 16, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Id. 

18 On August 15, 2013 Dr. Murphy noted that appellant related a history of left shoulder pain beginning in 2008 

after he smashed his arms between containers. He diagnosed left shoulder osteoarthritis, a rotator cuff tear, 

tendinitis, synovitis, and impingement. On September 26, 2013 Dr. Esser treated appellant for left shoulder pain, 

impingement, and synovitis. He discussed his history of a May 2008 work injury and noted that the incident was a 

matter of “[ongoing] litigation.” Neither physician, however, directly related any diagnosed condition to the 

May 14, 2008 employment injury, accepted only for a lumbar contusion. Consequently their reports are of little 

probative value. See A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004).