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. 13-1787 

Issued: May 16, 2014 

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On July 18, 2013 appellant, through her attorney, filed a timely appeal from a January 22, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) that denied her 

claim for compensation.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish that she was totally 

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

 1

 Under the Board’s Rules of Procedure, if using the date the appeal was received by the Clerk of the Board 

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 July 18, 2013, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On December 4, 2009 appellant, then a 44-year-old mail processing clerk, injured her 

back when she was knocked to the floor by another employee. Appellant’s supervisor 

investigated the matter and noted that appellant and the coworker both held a rack, attempting to 

gain control of it, when she fell. The coworker denied touching appellant or knocking her down. 

OWCP accepted a contusion of the low back. 

Appellant was treated by Dr. Eddie Sassoon, a Board-certified physiatrist, for neck and 

low back pain after she fell onto her right side while at work. Dr. Sassoon diagnosed status post 

fall, cervical and lumbar radiculitis, right shoulder tendinitis, right sacroiliitis and right hip 

bursitis. In a December 16, 2009 duty status report, Dr. Sassoon noted that appellant was unable 

to work until January 18, 2010. On January 12, 2010 he noted treating her for low back pain 

after a fall. Dr. Sassoon released appellant to full-time light duty on January 27, 2010. In a 

February 3, 2010 report, he treated her for radicular pain with radiation to the legs. Dr. Sassoon 

noted that appellant was working limited duty and continued to have pain. He continued limited 

duty. On February 9, 2010 Dr. Sassoon noted that appellant would transition to full duty. 

On July 22, 2010 appellant claimed total disability from February 21 to July 23, 2010. 

On March 3, 2010 Dr. Sassoon noted that she had a back injury on December 4, 2009 when she 

fell on her right side. Appellant returned to work on February 9, 2010 but stopped on 

February 17, 2010 due to lumbar and radicular pain. She reported operating machines and lifting 

up to 75 pounds. Dr. Sassoon recommended a magnetic resonance imaging (MRI) scan. He 

placed appellant off work due to severe pain, inability to stand or bear weight on the right leg 

and increased symptoms. In a June 21, 2010 report, Dr. Sassoon noted no change in her status. 

On July 19, 2010 he noted appellant’s injury and stated that an MRI scan showed a herniated 

disc at L3 to S1. Dr. Sassoon diagnosed lumbar radiculopathy and noted that she was disabled 

since February 21, 2010 and unable to resume work. 

In a July 27, 2010 letter, OWCP requested that appellant submit additional medical 

evidence to establish that she was totally disabled due to the accepted back condition for the 

period claimed. 

Appellant submitted a July 19, 2010 report from Dr. Sassoon who noted the December 4, 

2009 back injury. He reported findings of radicular pain and MRI scan findings of disc 

herniations at L3-4, L4-5 and L5-S1 and foraminal encroachment. Dr. Sassoon noted that she 

was off work because of the severity of mechanical and lumbar radicular pain and would 

undergo interventional injections and physical therapy. In an August 16, 2010 report, he noted a 

history of injury and diagnosed L3-4, L4-5 and L5-S1 disc herniations with nerve impingement 

and mechanical and radicular pain. Dr. Sassoon opined that appellant had total disability from 

her job because of the severity of pain and radiculopathy into the lower extremities interrupting 

sitting, standing, walking tolerance for more than five minutes without severe pain. 

In a decision dated August 30, 2010, OWCP denied appellant’s claim for compensation 

for total disability from February 21 to July 25, 2010. It found that the evidence did not establish 

that her total disability was due to her accepted low back condition. 
3

Appellant submitted a June 21, 2010 report from Dr. Sassoon who noted that she had a 

severe flare up of mechanical and radicular pain. A June 10, 2010 MRI scan showed 

impingement at L5-S1 with disc protrusions at L3-4, L4-5 and L5-S1. Dr. Sassoon placed 

appellant off duty until she started physical therapy. In a May 4, 2010 report, he noted that she 

had a back injury on December 4, 2009 when she was hit by an employee and fell on her right 

side. Dr. Sassoon reported findings and advised that appellant had mechanical and radicular 

pain. He noted that she was unable to work for the last few weeks and had significant pain with 

standing, sitting, bending or twisting. In a September 13, 2010 report and a form report, 

Dr. Sassoon noted that appellant had low back pain prior to the December 4, 2009 injury and 

underwent an MRI scan at that time which revealed mild stenosis at L4-5, bulging disc at T11-12 

and a protrusion at L5-S1 causing mild narrowing. In reports dated September 13 to 

November 30, 2010, he diagnosed low back pain and disc herniations at L3-4 and L5-S1 with 

foraminal encroachment and advised that she was disabled from work. Dr. Sassoon submitted 

additional reports dated November 30, 2010 to April 11, 2011, noting appellant’s status, 

diagnoses and disability for work. 

On October 29, 2010 OWCP referred appellant for a second opinion to Dr. Melvyn 

Drucker, a Board-certified orthopedic surgeon. The statement of accepted facts provided to 

Dr. Drucker noted that, although appellant claimed that she was knocked to the floor on 

December 4, 2009 by a coworker, the evidence supported that she was involved in a 

confrontation that resulted in both employees holding on to a rack and, as a result, she fell to the 

floor. 

In a November 16, 2010 report, Dr. Drucker reviewed the medical record and examined 

appellant. He listed a history of her condition, noting that she related the onset of her radiating 

back pain to a December 4, 2009 work episode when she was hit by an employee and fell on her 

right side. Dr. Drucker noted appellant’s medical history was significant for prior low back pain 

and radicular complaints which began in July 2009. He noted findings of antalgic gait, diffuse 

lumbar tenderness, positive straight leg raises, normal neurologic examination and normal 

reflexes. Lumbar x-rays revealed degenerative changes at L4-5, L5-S1. Dr. Drucker diagnosed 

status post lumbar sprain, underlying and preexisting herniated discs at L3-4, L4-5 and L5-S1. 

He found that appellant’s low back contusion resolved and she had residuals of her preexisting 

lumbar radiculitis and herniated discs. Based on the clinical history and examination, appellant’s 

work injury of December 4, 2009 aggravated her preexisting lumbar radiculitis due to the 

herniated discs. He noted evidence of continuing subjective complaints and clinical findings that 

precluded her from returning to her regular work. Dr. Drucker opined that the lumbar contusion 

aggravated her preexisting herniated disc condition. He returned appellant to full-time work with 

temporary physical restrictions. 

On May 2, 2011 OWCP referred appellant for a second opinion to Dr. David B. Lotman, 

a Board-certified orthopedic surgeon, regarding the nature and extent of appellant’s December 4, 

2009 work injury. 

In a letter dated May 3 and 19, 2011, appellant, through his attorney, asserted that 

Dr. Drucker found appellant to be disabled and disagreed with OWCP’s determination that 

another second opinion report was necessary. 
4

On May 4, 2011 appellant filed a Form CA-7, claim for compensation for total disability 

for the period February 21, 2010 to May 6, 2011. In a May 5, 2011 duty status report, 

Dr. Sassoon diagnosed herniated lumbar disc and noted that she was totally disabled. In form 

reports dated May 10, 2011, he noted no interval change in appellant’s condition or work status. 

In a letter dated May 24, 2011, OWCP requested that appellant submit additional medical 

evidence to establish that she was totally disabled due to the accepted back condition. 

In a May 26, 2011 memorandum, OWCP advised that Dr. Drucker’s November 16, 2010 

report noted that appellant related her symptoms to a December 4, 2009 episode at work when 

she was hit by an employee and fell on her right side. It advised that there was no evidence to 

establish that she was struck by another employee and this was not in the statement of accepted 

facts which Dr. Drucker was instructed to follow. OWCP found that Dr. Drucker’s opinion was 

not rationalized as he failed to provide a well-reasoned explanation as to how a contusion caused 

an aggravation of the preexisting degenerative condition. Because he based his medical opinions 

on appellant’s statements rather than the statement of accepted facts, it was of diminished 

probative value. 

In a May 31, 2011 letter, OWCP advised counsel that Dr. Drucker’s report was of 

diminished value as he did not follow the statement of accepted facts or provide sufficient 

reasoning for his opinion. 

In a May 31, 2011 letter, counsel asserted that Dr. Drucker’s report was rationalized, 

supported disability and explained the causal relationship between the aggravation of preexisting 

lumbar disc disease and the work incident. He requested that the claim be expanded to include 

aggravation of preexisting lumbar disc disease. On June 1, 2011 appellant requested 

reconsideration of the decision dated August 30, 2010. 

In a report dated June 6, 2011, Dr. Lotman reviewed the medical records and performed 

an examination of appellant. He noted a history of her condition and noted examination 

findings. Dr. Lotman opined that appellant’s lumbar contusion resolved based on her physical 

examination. He noted that she did not provide a concerted effort through the evaluation as 

shown by symptom-magnification and subjective complaints that outweighed the objective 

physical findings. Dr. Lotman found that appellant did not have residuals or disability of the 

December 4, 2009 injury and could return to her regular duties as an automation clerk without 

restrictions. 

In a decision dated June 28, 2011, OWCP denied appellant’s claim for total disability 

from July 24, 2010 to May 6, 2011. 

Appellant submitted reports from Dr. Sassoon dated June 13 and July 11, 2011 who noted 

appellant’s complaints of low back pain with radiation into the lower extremities. Dr. Sassoon 

diagnosed disc herniations at L3 to S1. 

On August 25, 2011 appellant requested reconsideration. She asserted that OWCP 

improperly disregarded Dr. Drucker’s report which supported that she had residuals of her work 

injury and an aggravation of her preexisting lumbar radiculitis due to her herniated discs. 
5

Appellant asserted that OWCP asked Dr. Lotman leading questions and failed to ask if the work 

incident aggravated her preexisting condition. 

In an August 26, 2011 decision, OWCP denied modification of the August 30, 2010 

decision. 

Appellant submitted reports from Dr. Sassoon dated February 14, 2011 to March 26, 

2012. Dr. Sassoon diagnosed disc herniations at L3-S1 with mechanical and radicular pain. In 

reports dated April 23 to September 10, 2012, he noted that she was unable to work since 

December 4, 2009 because of cervical and lumbar radicular symptoms. Dr. Sassoon noted that 

appellant had severe low back pain with prolonged standing, sitting, bending and twisting and 

her job requirements involved prolonged standing, sitting, bending, reaching and lifting 

containers with mail weighing up to 70 pounds. He advised that she could return to work full 

time on April 23, 2012 with sedentary restrictions. 

On August 15, 2012 OWCP referred appellant for a second opinion to Dr. Peter J. 

Millheiser, a Board-certified orthopedic surgeon. It provided Dr. Millheiser with appellant’s 

medical records, a statement of accepted facts and a detailed description of her work duties. 

Dr. Millheiser noted that examination of the cervical and lumbar spine revealed moderate 

tenderness, no spasm, no trigger points, normal lordosis and ecchymoses, normal motor and 

sensory examination with intact reflexes, normal gait with straight leg testing positive bilaterally. 

He noted various over exaggeration tests were positive, including double five flexion, Patrick’s 

sign and internal rotation of both legs. Dr. Millheiser diagnosed a lumbar sprain. He opined that 

appellant’s accepted condition, back contusion had long since resolved and she had no residuals 

of the work injury. Dr. Millheiser also found no residuals due to her nonwork-related herniated 

discs. There were no objective findings in the cervical spine or right shoulder. Dr. Millheiser 

advised that appellant was at maximum medical improvement and was able to return to her dateof-injury position at full-time regular duty. 

In an October 23, 2012 memorandum, OWCP noted that the second opinion questions 

were modified to better address the issues raised in appellant’s reconsideration request but 

Dr. Millheiser was not provided with the new set of questions before issuing his report. It asked 

Dr. Millheiser to respond to the modified questions which included whether appellant had any 

injury-related condition that caused partial or total disability beginning February 18, 2010. 

In an October 26, 2012 addendum report, Dr. Millheiser reviewed the statement of 

accepted facts and revised questions. He stated that appellant had a lumbar sprain on 

December 4, 2009 and a history of prior problems with MRI scans showing spinal stenosis. 

Dr. Millheiser noted that she had no residuals or limitations due to the December 4, 2009 work 

injury. The limitations that appellant had were due to her preexisting back problems and 

unrelated to the accident. Dr. Millheiser noted that the lumbar contusion resolved within a short 

period of time after the accident, approximately four to six weeks. He determined that there 

were no other diagnosed conditions causally related to the work injury. Dr. Millheiser advised 

that after the December 4, 2009 work injury, appellant would have needed to miss a short period 

of time from work, perhaps four to six weeks. He noted that, by February 18, 2010, two and a 

half months after the accident, she would not have been partially or totally disabled from her 

position as a mail processing clerk. 
6

In a January 22, 2013 decision, OWCP denied modification of the August 26, 2011 

decision.3 It denied appellant’s claim for wage loss on or after February 21, 2010. 

LEGAL PRECEDENT 

A claimant has the burden of proving by a preponderance of the evidence 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.4

 Whether a particular injury causes an employee to be 

disabled for employment and the duration of that disability are medical issues.5 The issue of 

whether a particular injury causes disability for work must be resolved by competent medical 

evidence.6 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.7

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 

establishing that he or she was disabled for work as a result of the accepted employment injury.8

ANALYSIS 

OWCP accepted appellant’s claim for a back contusion. She stopped work on 

February 21, 2010 and claimed wage-loss compensation beginning February 21, 2010. OWCP 

denied her wage-loss claim for the period beginning February 21, 2010 based on Dr. Millheiser’s 

report. The Board finds that there is a conflict in medical opinion between Dr. Millheiser, 

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

Dr. Millheiser diagnosed lumbar sprain and opined that appellant’s accepted back 

contusion resolved within four to six weeks of her injury and she had no residuals of the 

December 4, 2009 work injury. He also found no residuals of her nonwork-related herniated 

discs in the low back and no objective findings in the cervical spine or right shoulder. 

Dr. Millheiser noted that by February 18, 2010, two and a half months after the accident, she 

would not have been partially or totally disabled from her position as a mail processing clerk. 

Appellant was at maximum medical improvement and was able to return to her date-of-injury 

position at full-time regular duty. Dr. Sassoon noted that appellant returned to work on 

 3

 OWCP noted that it referred appellant to Dr. Millheiser after appellant inquired about whether OWCP posed 

appropriate questions to Dr. Lotman. 

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

5 Id. 

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

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

8 Sandra D. Pruitt, 57 ECAB 126 (2005). 
7

February 9, 2010 but stopped again on February 17, 2010 due to lumbar and radicular pain. 

Appellant was off work due to severe pain, the inability to stand or bear weight on the right leg 

and increased symptoms. Dr. Sassoon diagnosed lumbar radiculopathy and noted that appellant 

was disabled since February 21, 2010. He advised that she was unable to work since 

December 4, 2009 because of her lumbar radicular symptoms. 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. The Board, therefore, finds that a conflict in medical opinion has 

been created. 

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

making the examination for the United States and the employee’s physician, OWCP shall 

appoint a third physician who shall make an examination.9

 As there is an unresolved conflict in 

the medical evidence, the case must be remanded for OWCP to refer appellant to an appropriated 

Board-certified medical specialist to resolve the conflict. 

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 this case is not in posture for decision. 

 9

 5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 39 (1994). 
8

ORDER 

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

Compensation Programs dated January 22, 2013 is set aside and the case is remanded for further 

proceedings consistent with this decision by the Board. 

Issued: May 16, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board