United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Phoenix, AZ, Employer 

__________________________________________ 

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Docket No. 14-1497 

Issued: May 7, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 16, 2014 appellant, through counsel, filed a timely appeal from a January 8, 

2014 merit decision and an April 10, 2014 nonmerit 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. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective May 22, 2013; and (2) whether it 

properly denied her request for further merit review of suspension of her benefits pursuant to 

5 U.S.C. § 8128(a). 

On appeal, counsel contends that OWCP’s decisions are contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board.2 In a March 25, 2013 decision, the 

Board affirmed a June 12, 2012 OWCP decision suspending appellant’s compensation benefits 

effective December 15, 2011 under 5 U.S.C. § 8123(d) as she failed to attend a scheduled 

medical examination on November 21, 2011 by Dr. Ronald M. Lampert, a Board-certified 

orthopedic surgeon and OWCP referral physician. The facts and the circumstances of the case 

are set forth in the Board’s prior decision and are incorporated herein by reference. The relevant 

facts are set forth below. 

On April 1, 2010 appellant, then a 34-year-old city carrier, filed an occupational disease 

claim alleging that on March 24, 2010 she realized that her left shoulder, left upper back, and left 

neck pain was caused or aggravated by her federal employment. She attributed her conditions to 

a change in her workstation and method for performing her work duties. Appellant stated that an 

extra level was added to her case and she was required to reach across her body and above her 

shoulders to case mail. 

OWCP accepted appellant’s claim for sprain of her left shoulder and upper arm, and left 

superior glenoid labrum lesion. It authorized left shoulder arthroscopy with repair of superior 

labrum anterior and posterior labral (SLAP) tear, extensive debridement of partial thickness 

rotator cuff tear, and subacromial decompression performed on October 4, 2010. Appellant has 

not returned to work. 

Appellant ultimately attended a scheduled examination with Dr. Lampert on 

March 21, 2012. In several reports, including a July 5, 2012 addendum report, Dr. Lampert 

advised that the results of a June 27, 2012 functional capacity evaluation were inconsistent with 

appellant’s self-limiting behavior. Based on these inconsistent examination findings, he opined 

that she was at maximum medical improvement (MMI) and could return to her normal letter 

carrier work duties as described in a March 3, 2011 statement of accepted facts. Dr. Lampert 

concluded that no further medical treatment was necessary. 

In a July 18, 2012 report, Dr. Ravindranath Koopot, an attending Board-certified general 

and thoracic surgeon, provided a history of appellant’s family, social, and medical background. 

He listed findings on physical examination, assessed thoracic outlet syndrome, and 

recommended surgery to treat the diagnosed condition. Dr. Koopot noted that appellant had 

been off work due to her disability and advised that she could eventually return to work 

following the proposed surgery. 

On August 16, 2012 OWCP determined that there was a conflict in medical opinion 

between Drs. Lampert and Koopot regarding appellant’s residuals and work capacity. 

By letter dated August 27, 2012, OWCP referred appellant, together with the case record 

and a statement of accepted facts, to Dr. Marc J. Rosen, a Board-certified orthopedic surgeon, for 

an impartial medical examination. In a September 27, 2012 report, Dr. Rosen reviewed a history 

of the accepted employment injuries and appellant’s medical treatment. On physical 

 2

 Docket No. 12-1892 (issued March 25, 2013). 
3

examination, he found no obvious muscular atrophy in either the left or right upper extremity. 

Range of motion of the elbow, wrist, and forearm bilaterally was normal. There was a very 

slight restriction of abduction of the left shoulder compared to the right shoulder with 

approximately a five-degree discrepancy, the right being completely normal, the left being 

approximately five degrees less. Internal and external rotation was equal bilaterally. There was 

evidence on the skin of healed arthroscopic punctures on the left shoulder. Appellant 

demonstrated normal deep tendon reflexes of the biceps, triceps, and brachioradialis bilaterally. 

She was unable to grip as firmly on the left as on the right, however, manual motor testing in 

flexion and extension of the wrist, elbow, forearm, and opposition of the thumb and digits was 

entirely normal. Sensory testing was inconsistent with appellant’s intermittent complaints about 

different areas of the left arm being less sensate than the right. Pulsations were normal in both 

left and right upper extremities, 3+ at the brachial artery, and the radial and ulnar arteries in both 

extremities. An Adson’s test was negative bilaterally. There were no signs of any focal 

neurologic deficits in the left or right upper extremity. There were no focal signs of any vascular 

impairment of the left or right upper extremity. 

Dr. Rosen agreed with Dr. Lampert’s assessment of appellant’s status. He disagreed with 

Dr. Koopot’s proposed surgical intervention to treat thoracic outlet syndrome. Dr. Rosen did not 

see any indication from laboratory or clinical findings that appellant’s current disability was 

related to the work injury. He advised that she had reached MMI and that, other than a slight 

asymmetry of shoulder abduction of less than five degrees, there was no impairment. Dr. Rosen 

further advised that appellant did not suffer from a work-related consequential thoracic outlet 

condition requiring the proposed surgery. He stated that, while an Adson’s test was not a 

definitive diagnosis for this condition and it may be limited by an examiner’s bias, it was a 

known fact that some people could demonstrate a positive Adson’s test without having true 

thoracic outlet syndrome. Dr. Rosen nonetheless advised that appellant did not demonstrate any 

of the clinical symptoms associated with a need for surgery for thoracic outlet syndrome. He did 

not see any evidence that her condition was aggravated as no temporary or permanent change 

had occurred to alter the course of any underlying disease. 

Dr. Rosen also did not see any objective findings to correlate with appellant’s subjective 

complaints. Appellant had no preexisting conditions and none of these factors contributed to her 

current subjective or objective findings. Dr. Rosen believed that her current condition was not 

likely to change and stated that no additional treatment was recommended. He reported that 

Dr. Koopot’s diagnosis of thoracic outlet syndrome and proposed surgery were not related to her 

industrial injury and preexisted any injury or traumatic event. Dr. Rosen advised that appellant 

did not have any restrictions that prevented her from returning to her regular work duties. He 

found that her examination was essentially normal and other than her subjective complaints, no 

objective evidence of impairment or limitation of function could be identified. Dr. Rosen noted 

that four electromyogram and nerve conduction velocities (EMG/NCV) studies confirmed 

normal neurologic function in appellant’s upper extremity, yet her examination showed 

inconsistencies not compatible with this objective data. There was no reason provided as to why 

appellant could not perform modified-work assignments. She did not suffer any residuals of the 

accepted conditions other than a five-degree discrepancy in shoulder abduction above the 

horizontal comparing the left to the right. Both arms, however, demonstrated range of motion 

well within a normal physiologic position. Dr. Rosen attributed the slight restriction of 

appellant’s left shoulder to the arthroscopic surgery and the presence of the labral repair. He 
4

noted that alteration of the glenoid labrum and tightening of the anterior capsule of the shoulder 

may very well have produced this condition and minimum range of motion discrepancy. 

Dr. Rosen concluded that his findings were in concert with Dr. Lampert’s findings. In a work 

capacity evaluation (Form OWCP-5c) dated September 27, 2012, he indicated that appellant 

could work eight hours a day with certain restrictions for nonwork-related conditions, which 

included pushing, pulling, and lifting up to 50 pounds. 

By letter dated March 4, 2013, OWCP notified appellant that it proposed to terminate her 

wage-loss compensation benefits based on Dr. Rosen’s impartial medical opinion. It allotted 30 

days for her to submit additional evidence or argument in disagreement with the proposed action. 

In a timely March 25, 2013 narrative statement, appellant contended that Dr. Rosen’s 

report was not entitled to the weight of the medical evidence as it was not rationalized. She 

contended that his physical findings did not substantiate his medical opinion and there were 

obvious inconsistencies in his report. Appellant requested, among other things, that Dr. Rosen 

submit a report explaining and clarifying why she could perform her work duties. 

In a March 12, 2013 attending physician’s report (Form CA-20), Dr. Koopot identified 

the date of injury as March 24, 2010 and indicated with an affirmative mark that appellant’s 

improving neurogenic thoracic outlet bilateral obstruction symptoms were aggravated by 

repetitive movements at work. He indicated that the period of total disability was not applicable 

as he did not evaluate her for a disability determination, but rather for the clinical correlation of 

her thoracic outlet obstruction. In a March 13, 2013 narrative report, Dr. Koopot noted 

appellant’s left upper extremity complaints, provided findings on physical examination, 

reiterated his prior assessment of thoracic outlet syndrome and assessed limb pain. He noted that 

her pain improved with restricted activity and movement of the left upper extremity, but reported 

that her release to an unrestricted work position which included weight bearing would present a 

significant chance of a recurrence of her prior symptoms. Based on these findings, Dr. Koopot 

did not recommend left-sided upper and lower thoracic outlet decompression surgery at that 

time. He noted that appellant had not been able to return to work due to persistent left shoulder 

symptoms and she had been on work restrictions since that time. 

In a March 20, 2013 Form CA-20, Dr. Susan C. Sorosky, a Board-certified physiatrist, 

identified the date of injury as March 24, 2010. She indicated with an affirmative mark that 

appellant had thoracic outlet syndrome caused or aggravated by an employment activity. 

Dr. Sorosky explained that the diagnosed condition was caused by repetitive movement of the 

left upper extremity. She stated that appellant was not evaluated for disability purposes. In a 

March 22, 2013 progress note, Dr. Sorosky listed findings on physical examination, reviewed 

diagnostic test results, and assessed diffuse cervicobrachial syndrome and shoulder joint pain. 

She advised that appellant’s history, physical examination, and ancillary findings were consistent 

with chronic left arm pain and paresthesias likely related to thoracic outlet syndrome. 

Dr. Sorosky related that clinical ulnar neuritis should also be considered. She stated that these 

symptoms began after appellant’s work-related injury culminating in her October 2010 labral 

repair. Dr. Sorosky agreed with the recommendations of Dr. Koopot, a Dr. Wheatley,3

 and 

 3

 The Board notes that the full name and professional qualifications of Dr. Wheatley are not contained in the case 

record. 
5

Dr. Byron H. Willis, Jr., a Board-certified radiologist, as related by appellant that she undergo 

thoracic outlet release and ulnar nerve release. 

In a March 27, 2013 addendum to her March 22, 2013 progress note, Dr. Sorosky advised 

that based on a normal EMG/NCV study for ulnar neuropathy she doubted that this was a clinical 

pain generator. 

On March 20, 2013 Dr. Frank Moussa, a Board-certified orthopedic surgeon, noted 

appellant’s left upper extremity complaints, provided physical examination findings, and 

diagnosed impingement syndrome, a superior glenoid labrum lesion, and an ulnar nerve injury. 

He opined that there was nothing more that could be done for her shoulder given the fact that she 

already had a labral repair. 

Also, on March 20, 2013 Dr. Raymond A. Murphy, a Board-certified radiologist, 

reported that a cervical spine x-ray revealed no fracture, malalignment, or prevertebral soft tissue 

swelling. He found mild loss of cervical lordosis, mild disc narrowing, and spondylosis 

deformans at C4-5 and C5-6, mild posterior osseous ridging at C4-5 and C5-6, mild 

uncovertebral joint arthrosis at C4-5 and C5-6, and a normal atlantodental interval and dens. 

In a left shoulder x-ray report dated March 20, 2013, Dr. Adrian Moyer, a Board-certified 

radiologist, advised that there was no acute bone finding. 

In a March 27, 2013 letter, Dr. Candyce D. Williams, a Board-certified internist and 

physiatrist, noted that appellant had a history of neck, shoulder, and back pain secondary to a 

motor vehicle accident in 2005 to 2006. She noted a normal sensory examination as there was 

no evidence of nerve entrapment or sensory loss. Dr. Williams also noted appellant’s pain 

treatment and concluded that she had recovered from this incident and had returned to full-time 

work. 

On April 9, 2013 Dr. Willis reported appellant’s left upper extremity symptoms. He 

recommended a repeat EMG study to determine if her condition had progressed consistent with 

her clinical picture. Dr. Willis advised that appellant did not appear to have symptoms consistent 

with neurogenic thoracic outlet syndrome or vascular thoracic outlet syndrome. He ordered a set 

of cervical x-rays to assess for a small cervical rib that may not be visible on a magnetic 

resonance imaging (MRI) scan. 

In a May 22, 2013 decision, OWCP terminated appellant’s wage-loss compensation and 

medical benefits effective that day. It found that the medical evidence submitted was insufficient 

to outweigh the special weight accorded to Dr. Rosen’s opinion as an impartial medical 

specialist. 

By letters dated June 4 and 12, 2013, appellant requested reconsideration and submitted 

medical evidence.4

 In a September 15, 2011 left brachial plexus MRI scan report, Dr. Angela M. 

 4

 On June 5, 2013 appellant requested a review of the written record by an OWCP hearing representative 

regarding OWCP’s May 22, 2013 termination decision. By letter dated June 21, 2013, she stated that she wished to 

withdraw this request and pursue her reconsideration request. 
6

Dagirmanjian, a Board-certified radiologist, advised that the test was unremarkable and 

unenhanced. Also, on September 15, 2011 she reported that a cervical spine MRI scan showed 

C4-5 disc-osteophyte complex which resulted in flattening of the ventral aspect of the spinal cord 

parenchyma which was asymmetric to the right of midline. Dr. Dagirmanjian found C5-6 discosteophyte complex with contouring with mild flattening of the ventral aspect of the spinal cord 

parenchyma. She advised that no neural foraminal stenosis was identified or focal cervical 

spinal cord parenchymal signal intensity abnormality was seen. 

In notes dated September 23 and November 20, 2011, Dr. Moussa listed physical 

examination findings, reiterated that his prior diagnoses of impingement syndrome and superior 

glenoid labrum lesion of the left shoulder, and diagnosed left shoulder pain. 

In reports and a letter dated August 12 to November 28, 2011 and June 3, 2013, 

Dr. Sorosky diagnosed left shoulder pain, impingement syndrome, and SLAP lesion, and 

thoracic outlet syndrome. In the November 28, 2011 letter and June 3, 2013 report, she opined 

that appellant’s SLAP lesion and subsequent surgery, and thoracic outlet syndrome were related 

to her accepted work injury and repetitive stress motion inherent in her mail carrier job. 

Dr. Sorosky deferred a determination regarding her current work abilities and job restrictions to 

Dr. Moussa. In a May 11, 2012 report, she found that an electrodiagnostic study was normal. 

There was no evidence of left cervical radiculopathy, brachial plexopathy, or other peripheral 

nerve pathology affecting the left upper extremity, including the ulnar nerve at the elbow as 

specifically queried by Dr. Willis. 

In a partial copy of a report dated April 9, 2012 and a May 14, 2013 progress note, 

Dr. Willis noted appellant’s left upper extremity complaints, provided findings on physical 

examination, and assessed left ulnar neuropathy. He advised that, although an EMG was 

negative, clinically she still had symptoms consistent with ulnar nerve irritation. Dr. Willis 

concluded that appellant was a good candidate for left ulnar nerve decompression. In a June 7, 

2013 letter, he advised that she had cubital tunnel syndrome of the left arm as a result of her 

accepted occupational repetitive stress motion injury which rendered her unfit for duty as a mail 

carrier. Dr. Willis recommended surgery to repair this condition. He noted that appellant did not 

have any previous history of trauma to the left upper extremity. Dr. Willis recommended that 

she not return to her prior mail carrier job while still bearing this disorder. He reported that, if 

left untreated, then ulnar nerve entrapment at the elbow could result in a progressive motor 

deficit and ultimately, flexion contracture of the affected fingers. Dr. Willis noted that 

symptoms which included pain, numbness, and tingling within the ulnar nerve distribution of the 

hand usually occurred after repetitive elbow motions or from repeated pressure on the elbow 

while sorting mail which was listed in appellant’s mail carrier job description. 

In a March 29, 2013 report, Dr. Williams noted appellant’s left upper extremity 

complaints, listed findings on physical examination, and diagnosed neck and shoulder pain. She 

noted appellant’s documented normal neurologic and sensory examinations from 2005 to 2006. 

Dr. Williams further noted that she had treated appellant for myofascial pain secondary to a 

motor vehicle accident. She advised that appellant currently had new left shoulder pain and 

neurologic symptoms in her hand which were not present from 2005 to 2006. 
7

In a June 17, 2013 letter, Ann M. Noser, a licensed professional counselor, stated that 

appellant had received 11 counseling sessions that began on February 13, 2012. 

An unsigned letter dated July 17, 2013 from AZ Neurosurgery and Spine Specialists 

stated that appellant was scheduled to undergo left ulnar nerve decompression at the elbow on 

July 30, 2013 by Dr. Willis. In a July 30, 2013 note, Dr. Willis described the left elbow surgery. 

By decision dated September 10, 2013, OWCP denied modification of the May 22, 2013 

decision. It found that the medical evidence submitted was insufficient to outweigh the special 

weight accorded to Dr. Rosen’s impartial medical opinion. 

In a September 18, 2013 letter, appellant again requested reconsideration. 

In a September 25, 2013 decision, OWCP denied appellant’s request for reconsideration 

without a merit review of her claim. It found that she had not submitted any relevant or pertinent 

new evidence. 

By letter dated October 15, 2013, appellant requested reconsideration and submitted a 

September 23, 2013 report from Dr. Sorosky, who described her left elbow symptoms, findings 

on physical and neurological examination, and reiterated her assessment of diffuse 

cervicobrachial syndrome and shoulder joint pain. Dr. Sorosky advised that appellant possibly 

had clinical thoracic outlet syndrome which developed after a work-related injury culminating in 

the October 2010 labral repair. In an addendum also dated September 23, 2013, she expressed 

her disagreement with Dr. Rosen’s September 21, 2012 findings that appellant’s diagnoses were 

not work related, that she was at maximum medical improvement, she did not have thoracic 

outlet syndrome, and that she did not need any more treatment. Dr. Sorosky advised that the 

diagnoses were work related. Given that appellant just had surgery for cubital tunnel and was 

undergoing physical therapy, she was not at maximum medical improvement. Dr. Sorosky 

believed that appellant had clinical thoracic outlet syndrome even though EMG/NCV imaging 

tests had been normal. She concluded that appellant may need additional treatment for this 

condition. 

In an October 10, 2013 report, Dr. Willis noted appellant’s left hand symptoms, listed 

physical examination findings and assessed a routine postoperative course status post left ulnar 

nerve decompression with resolution of preoperative symptoms. 

In a January 8, 2014 decision, OWCP denied modification of the May 22, 2013 decision. 

It again found that the medical evidence submitted was insufficient to outweigh the special 

weight accorded to Dr. Rosen’s impartial medical opinion. 

By letters dated October 27, 2013, February 18, and March 24 and 25, 2014, appellant, 

through counsel, requested reconsideration before OWCP regarding the suspension of her 

compensation benefits. She contended that neither the Board’s decision nor OWCP’s decision 

explained why she was not entitled to wage-loss compensation from March 21 to June 27, 2012. 

Appellant stated that her obstruction of the scheduled examination ceased on March 21, 2012 

and that she was entitled to compensation as of that date. She related that she was unable to 

attend the scheduled medical examination due to medical reasons. 
8

In a February 24, 2014 report, Dr. Sorosky reiterated that her prior assessments of 

primary diffuse cervicobrachial syndrome and shoulder joint pain. She advised that appellant’s 

history and physical examination, and her ancillary findings were consistent with 60 percent 

improved chronic left arm pain and paresthesias which was multifactorial. Dr. Sorosky noted 

appellant’s March 2010 employment injury and diagnosis of cubital tunnel syndrome, for which 

she was status post July 2013 cubital tunnel surgery. She advised that appellant was due to 

return to work on April 14, 2014. Dr. Sorosky opined that her shoulder injury and resultant 

surgery, and thoracic outlet syndrome were due to the accepted March 24, 2010 work injury. 

She found appellant unable to complete her normal mail carrier duties at that time. Dr. Sorosky 

set forth appellant’s restrictions and concluded that she would be at MMI upon completion of 

physical therapy. 

In a February 27, 2014 summary of appellant’s visit, Dr. Cheryl Villamor Nierva, a 

Board-certified family practitioner, provided findings on physical examination and diagnosed 

chronic left shoulder pain and thoracic outlet syndrome. In another report dated February 27, 

2014, she diagnosed cubital tunnel syndrome, a superior glenoid labrum lesion, and thoracic 

outlet syndrome of the left upper extremity. Dr. Villamor Nierva advised that appellant could 

return to part-time sedentary light-duty office work, four hours a day, on May 1, 2014. She 

expected appellant to return to full-duty work on June 30, 2014 with restrictions. 

By decision dated April 10, 2014, OWCP denied a merit review of the suspension of 

appellant’s compensation benefits because the evidence submitted was cumulative and 

repetitious, and that she had submitted no new relevant argument. 

LEGAL PRECEDENT -- ISSUE 1 

According to FECA, once OWCP accepts a claim and pays compensation, it has the 

burden of justifying termination or modification of an employee’s benefits.5

 It may not 

terminate compensation without establishing that the disability had ceased or that it was no 

longer related to the employment.6 OWCP’s burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.7 The 

right to medical benefits for an accepted condition is not limited to the period of entitlement for 

disability compensation.8

 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which 

require further medical treatment.9

 5 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

6 Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 

ECAB 541 (1986). 

7 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

8 A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 

677 (2005). 

9 A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002). 
9

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

making the examination for the United States and the physician of an employee, the Secretary 

shall appoint a third physician (known as a referee physician or impartial medical specialist) who 

shall make an examination.10 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.11 When there exists 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 -- ISSUE 1 

The Board finds that OWCP met its burden of proof to terminate appellant’s 

compensation and medical benefits on May 22, 2013. 

OWCP accepted appellant’s claim for sprain of the left shoulder and upper arm and a 

lesion on the left superior glenoid labrum, and authorized left shoulder arthroscopic surgery 

performed on October 4, 2010. It terminated her wage-loss compensation and medical benefits 

effective May 22, 2013 finding that the accepted employment-related conditions had resolved 

without residuals based on the opinion of the impartial medical examiner, Dr. Rosen. 

OWCP referred appellant to Dr. Rosen to resolve a conflict in medical opinion between 

Drs. Koopot and Lampert. Dr. Koopot, a treating physician, opined that appellant had thoracic 

outlet syndrome requiring surgery and that she was totally disabled. Dr. Lampert, an OWCP 

referral physician, opined that appellant had no work-related residuals or disability. The Board 

affirms the finding of a conflict in medical opinion between Dr. Koopot and Dr. Lampert on the 

issues of medical residuals and disability. OWCP referred appellant to Dr. Rosen to resolve the 

conflict under 5 U.S.C. § 8123(a). 

In his September 27, 2012 report, Dr. Rosen provided findings based on a physical 

examination, a review of the statement of accepted facts, and medical history. He determined 

that appellant no longer suffered residuals of her accepted employment-related left shoulder 

injuries and did not need any further medical treatment. Dr. Rosen stated that the right and left 

upper extremities were essentially normal on examination. A very slight restriction of abduction 

of the left shoulder was noted compared to the right shoulder with approximately a five-degree 

discrepancy, but both arms demonstrated range of motion well within a normal physiologic 

position. An inability to grip as firmly on the left as on the right was also noted, however, 

manual motor testing in flexion and extension of the wrist, elbow, forearm, and opposition of the 

thumb and digits was entirely normal. Appellant’s intermittent complaints about different areas 

of the left arm being less sensate than the right were inconsistent with normal sensory findings 

 10 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009). 

11 20 C.F.R. § 10.321. 

12 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001). 
10

on examination and a negative Adson’s test. Dr. Rosen advised that she did not sustain thoracic 

outlet syndrome as a consequence of the accepted injuries. He explained that appellant did not 

demonstrate any symptoms and there were no laboratory or clinical findings of this condition. 

Dr. Rosen found that she had no disability due to her accepted injuries. He opined that appellant 

reached maximum medical improvement and that she could return to work full-time regular duty 

with some lifting restrictions over 50 pounds. 

The Board finds that Dr. Rosen had an accurate knowledge of the relevant facts and 

evaluated the course of appellant’s condition. Dr. Rosen is a specialist in the appropriate field. 

At the time benefits were terminated, he determined that appellant had no work-related residuals 

or disability for full-time employment. Dr. Rosen’s opinion as set forth in his September 27, 

2012 report is probative and reliable evidence. The Board finds that his opinion constitutes the 

special weight of the medical evidence and is sufficient to justify OWCP’s termination of 

compensation and medical benefits for the accepted condition of left shoulder sprain and upper 

arm and left superior glenoid labrum lesion. 

The Board further finds that the medical evidence submitted after Dr. Rosen’s impartial 

medical evaluation report does not overcome the weight of his report or create a conflict in 

medical evidence. Dr. Sorosky’s November 28, 2011 and September 23, 2013 reports found that 

appellant’s superior glenoid labrum lesion of the left shoulder and resultant authorized surgery 

are causally related to her repetitive work duties. However, she did not provide any medical 

rationale explaining why the accepted employment-related left shoulder injury and authorized 

surgery caused continuing residuals. The Board has held that opinions unsupported by rationale 

are of diminished probative value.13 Further, Dr. Sorosky did not offer an opinion on appellant’s 

disability and deferred her opinion on her disability and restrictions, to Dr. Moussa. The Board 

has held that medical evidence that does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship.14 

The above-noted reports from Dr. Sorosky, September 15, 2011 diagnostic test results 

from Dr. Dagirmanjian, September 23 and November 20, 2011 notes from Dr. Moussa, April 9, 

2012 and June 7, 2013 reports, and May 14, 2013 progress note from Dr. Willis, and March 29, 

2013 report from Dr. Williams found that appellant had thoracic outlet syndrome, diffuse 

cervicobrachial syndrome, shoulder joint pain, C5-6 disc-osteophyte complex with contouring 

with mild flattening of the ventral aspect of the spinal cord parenchyma, left shoulder 

impingement syndrome and pain, left ulnar neuropathy, cubital tunnel syndrome of the left arm, 

neck pain. As OWCP had not accepted any additional left shoulder condition or left arm, 

thoracic, and cervical conditions as employment related, appellant had the burden of proof to 

establish a nexus between these conditions and the accepted employment injuries.15 

 13 T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006). 

14 See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); 

Michael E. Smith, 50 ECAB 313 (1999). 

15 T.M., supra note 13. 
11

Dr. Sorosky opined that appellant’s thoracic outlet syndrome was caused by the accepted 

employment injuries and her repetitive mail carrier duties, but she did not explain her diagnosis 

in light of contrary diagnostic evidence, normal electrodiagnostic test results, or provide medical 

rationale to support her opinion on causal relationship.16 In addition, she diagnosed diffuse 

cervicobrachial syndrome and shoulder joint pain. Dr. Sorosky disagreed with Dr. Rosen’s 

opinion that appellant’s conditions were not work related, but did not provide any rationalized 

medical opinion stating that the diagnosed conditions and any resultant disability were causally 

related to the accepted injuries.17 As noted, she deferred her opinion regarding appellant’s work 

capacity and restrictions to Dr. Moussa. 

Similarly, neither Dr. Dagirmanjian nor Dr. Moussa provided any medical opinion 

addressing whether appellant’s cervical and left shoulder conditions were caused by the accepted 

employment injuries and resulted in her disability for work.18 

Dr. Willis stated that appellant’s cubital tunnel syndrome of the left arm and disability for 

work in her mail carrier position resulted from the accepted employment injuries because she did 

not have any previous history of trauma to the left upper extremity and that, symptoms of pain, 

numbness, and tingling within the ulnar nerve distribution of the hand usually occurred after 

repetitive elbow motions or from repeated pressure on the elbow found in sorting mail which 

was listed in her job description. However, he did not sufficiently explain how sorting mail 

caused the purported residuals and disability.19 Moreover, Dr. Willis did not sufficiently explain 

his diagnosis of left ulnar neuropathy, which required surgery, in light of a normal EMG study.20 

Dr. Williams listed examination findings and diagnosed neck and new left shoulder pain, 

and neurologic symptoms in the hand. The Board has long held that pain is a symptom, not a 

compensable medical diagnosis.21 Dr. Williams failed to provide any rationale as to whether 

appellant’s neck and shoulder pain resulted in a medical condition. 

The June 17, 2013 letter from Ms. Noser, a licensed professional counselor, has no 

probative medical value. A licensed professional counselor is not a physician under FECA.22 

 16 See cases cited supra note 13. 

17 See cases cited supra note 14. 

18 Id. 

19 See cases cited, supra note 13. 

20 Id. 

21 C.F., Docket No. 08-1102 (issued October 10, 2008). 

22 5 U.S.C. § 8101(2); Phillip L. Barnes, 55 ECAB 426 (2004). The Board notes that OWCP in its discretion may 

reimburse a claimant for treatment or services provided by a lay psychotherapist if authorized or recommended by a 

physician for the effects of an accepted condition. Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical 

Services and Supplies, Chapter 3.400.5 (April 1993). The issue of medical reimbursement is separate and apart from 

the issue of a layperson’s lack of medical competency in providing an opinion on disability or causal relationship. 
12

The unsigned July 17, 2013 letter from AZ Neurosurgery and Spine Specialists has no 

probative value in establishing that appellant has any continuing employment-related residuals or 

disability, as it is not clear whether a physician under FECA prepared the reports. It is well 

established that medical evidence lacking proper identification is of no probative medical 

value.23

It is therefore concluded by the Board that OWCP met its burden of proof to terminate 

appellant’s compensation and medical benefits on May 22, 2013. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128 of FECA,24

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously 

considered by it.25 To be entitled to a merit review of an OWCP decision denying or terminating 

a benefit, a claimant also must file his or her application for review within one year of the date of 

that decision.26 Section 10.608(b) of the implementing regulations state that any application for 

review that does not meet at least one of the requirements listed in 20 C.F.R. § 10.606(b)(3) will 

be denied by OWCP without review of the merits of the claim.27

ANALYSIS -- ISSUE 2 

Following the Board’s March 25, 2013 decision affirming OWCP’s suspension of her 

compensation benefits effective December 15, 2011 based on her refusal to attend a scheduled 

medical examination on November 21, 2011 by Dr. Lampert, appellant requested reconsideration 

before OWCP. 

The Board finds that appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant did not advance a relevant legal 

argument not previously considered. In her requests for reconsideration, she contended that 

neither the Board’s decision nor OWCP’s decision explained why she was not entitled to wageloss compensation from March 21 to June 27, 2012. The Board explained in its March 25, 2013 

 23 Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB 

572 (1988). 

24 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

25 20 C.F.R. § 10.606(b)(3). 

26 Id. at § 10.607(a). 

27 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
13

decision why appellant’s contention was not relevant before the Board. The Board found that the 

relevant issue was whether OWCP had properly suspended appellant’s compensation benefits 

effective December 15, 2011 under 5 U.S.C. § 8123(d) due to her failure to attend the scheduled 

medical examination of November 21, 2011. The Board found that appellant had not submitted 

sufficient evidence to establish that she was incapable of attending the November 21, 2011 

examination and, thus, found that OWCP properly suspended her compensation benefits 

effective December 15, 2011. 

Similarly, OWCP explained in its April 10, 2014 decision that appellant’s contention 

regarding her entitlement to further compensation was not relevant. It noted that the Board’s 

March 25, 2013 decision explained that the sole issue was whether OWCP properly suspended 

her compensation benefits on December 15, 2011 and not when obstruction ceased. OWCP 

found that appellant’s contention was cumulative in nature and had been previously considered 

in its December 15, 2011, June 12, 2012, and March 25, 2013 decisions. 

Appellant further contended that she was entitled to wage-loss compensation from 

March 21 to June 27, 2012 because her obstruction of the schedule examination ceased on 

March 21, 2012. As noted, this contention was previously considered by the Board in its 

March 25, 2013 decision. The Board has held that the submission of evidence or argument 

which repeats or duplicates evidence or argument already in the case record does not constitute a 

basis for reopening a case.28 Appellant did not otherwise make any argument to establish an 

error on a specific point of law. Consequently, she was not entitled to a review of the merits of 

her claim based on the first and second above-noted requirements under section 10.606(b)(3).29

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered. Dr. Sorosky’s February 24, 2014 report and Dr. Villamor Nierva’s 

February 27, 2014 reports addressed appellant’s left upper extremity conditions, the causal 

relationship between these conditions and the accepted employment injuries, and appellant’s 

work capacity. This evidence does not address appellant’s inability to report to the examination 

scheduled for November 2011 and is therefore not relevant to the issue of whether she has 

established good cause for failing to submit to the November 21, 2011 medical examination by 

Dr. Lampert.30

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP 

or submit relevant and pertinent new evidence not previously considered by OWCP. Pursuant to 

20 C.F.R. § 10.608, OWCP properly denied merit review. 

On appeal, counsel contended that OWCP’s April 10, 2014 decision is contrary to law 

and fact. As discussed above, appellant did not provide argument or evidence satisfying any of 

 28 See A.L., Docket No. 08-1730 (issued March 16, 2009). 

29 20 C.F.R. § 10.606(b)(3). 

30 M.E., 58 ECAB 694 (2007); D’Wayne Avila, 57 ECAB 642 (2006) (the submission of evidence that does not 

address the relevant issue involved does not constitute a basis for reopening a case). 
14

the three regulatory criteria for reopening a claim. Therefore, OWCP properly denied the request 

for reconsideration. 

On appeal, appellant submitted additional evidence. However, the Board may not 

consider new evidence on appeal.31

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits effective May 22, 2013. The Board further finds that it properly denied her 

request for further merit review of her claim pursuant to 5 U.S.C. § 8128(a) regarding its 

suspension of her compensation for failing to attend a scheduled medical examination. 

ORDER 

IT IS HEREBY ORDERED THAT the April 10 and January 8, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: May 7, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees' Compensation Appeals Board 

 31 See 20 C.F.R. § 501.2(c)(1).