United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE 

Aberdeen, MD, Employer

__________________________________________

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Docket No. 17-0525

Issued: December 15, 2017

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEN Duffy KIKO, JUDGE

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 9, 2017 appellant, through counsel, filed a timely appeal from July 28 and 

December 27, 2016 merit decisions of the Office of Workers’ Compensation Programs (OWCP). 

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 this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

ISSUES

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

wage-loss compensation benefits effective August 21, 2016; and (2) whether appellant met her 

burden of proof to establish continuing employment-related disability after August 21, 2016. 

FACTUAL HISTORY

OWCP accepted that on May 18, 2015 appellant, then a 53-year-old rural carrier, 

sustained a sprain of the left shoulder and upper arm acromioclavicular (AC), and sprain of other 

specified sites of the left hip, left thigh, left knee, and left leg while in the performance of duty. 

Appellant stepped out of her truck to deliver mail to a box and the sidewalk crumbled. She 

pulled her left foot out of a hole. Appellant stopped work on May 19, 2015 and has not returned 

to work.

OWCP authorized appellant to undergo a left knee arthroscopy and medial chondroplasty 

of the patellofemoral joint and lateral femoral condyle performed on August 27, 2015 by

Dr. John A. Prodoehl, an attending Board-certified orthopedic surgeon. 

In a November 10, 2015 medical report, Dr. Prodoehl noted appellant’s left knee, left hip, 

and left shoulder symptoms and described findings on physical examination. He provided an 

impression of status post left knee arthroscopy, left shoulder impingement, left hip strain, 

cervical radiculopathy, and C4-5 herniated nucleus pulposus. Dr. Prodoehl related that appellant 

would remain out of work until further notice. He further related that the diagnosed conditions 

were directly related to her May 18, 2015 work injuries.

On January 6, 2016 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), a set of questions, and the medical record, to Dr. Willie E. Thompson, a Board-certified 

orthopedic surgeon, for a second opinion. In a January 22, 2016 report, Dr. Thompson detailed 

her history, reviewed the medical record and SOAF, and provided findings on examination. He 

found no evidence of any residuals of the accepted work conditions. Dr. Thompson reasoned 

that the examination findings were within normal limits. He advised that appellant could return 

to work immediately with no restrictions, continued medical treatment, or additional diagnostic 

testing.

On February 26, 2016 OWCP determined a conflict in medical opinion existed between 

Drs. Prodoehl and Thompson regarding appellant’s residual disability. It referred her, together 

with a SOAF, a set of questions, and the medical record, to Dr. Kevin E. McGovern, a Boardcertified orthopedic surgeon, for an impartial medical examination. 

In his March 25, 2016 report, Dr. McGovern reviewed the medical record and noted a 

history of the accepted May 18, 2015 work injuries and appellant’s medical treatment. Appellant

had ongoing pain and occasional giving way in her knee. She also had pain in her left buttock 

that radiated towards her groin and left shoulder and stiffness in her left shoulder. Appellant

rated her pain as 7 out of 10 on average and 9 out of 10 at worst. She reported that her pain 

interfered with standing, sleeping, and daily activities. It also affected lifting, squatting, bending, 

standing, reaching, walking, sitting, kneeling, stair climbing, and tasks completed with her 
3

hands. On examination, appellant had full right shoulder motion. Left shoulder motion was 

reduced voluntarily secondary to pain at 80 percent of normal. There was no atrophy, redness, or 

warmth. Appellant had diffuse tenderness around the shoulder. Good elbow and wrist motion 

were noted. Strength was symmetrical although her complained about pain with strength testing 

of her left shoulder. The left hip had full motion with pain on internal rotation. Appellant

complained about tenderness in her buttock and groin. There was no crepitus, instability, 

trochanteric tenderness, redness, or warmth. The left knee had well-healed arthroscopic 

incisions. Motion was 0 to 125 degrees. There was no measurable thigh atrophy. Appellant 

complained about tenderness anteriorly and medially. McMurray’s and Homan’s tests were

negative. No instability or calf tenderness was noted. A left hip x-ray showed mild narrowing of 

the medial hip joint space. A left shoulder x-ray revealed degenerative AC joint changes with 

joint narrowing and hypertrophic changes of the distal clavicle. A left knee x-ray revealed mild 

narrowing of the medial joint space. Some spiking of the tibial spines was noted. Dr. McGovern 

provided an impression of left shoulder strain and left hip and left knee sprain as a result of the

May 18, 2015 injury. The subsequent left knee arthroscopic surgery revealed findings of 

degenerative arthritis which were unrelated to the May 18, 2015 injury. Dr. McGovern advised

that preexisting degenerative arthritis in the hip and shoulder in the AC joint was noted on 

magnetic resonance imaging (MRI) scans. He noted that appellant’s prognosis was good and she 

was capable of returning to full-duty work as a rural carrier with no limitations. Dr. McGovern 

maintained that there should be no expansion of the accepted conditions based on her May 18, 

2015 work injury. Appellant had only mild residual stiffness in her shoulder as a result of her 

injuries. Dr. McGovern concluded that her preexisting arthritis in her knee, shoulder, and hip 

were not aggravated as a result of her work injury.

On June 26, 2016 OWCP proposed to terminate appellant’s wage-loss compensation 

benefits based on Dr. McGovern’s report. It afforded her 30 days to submit additional evidence 

or argument if she was in disagreement with the proposed action.

OWCP received daily notes dated April 22 to June 24, 2016 from appellant’s physical 

therapist. In an August 11, 2015 left shoulder MRI scan report, Dr. Waseem K. Khan, a Boardcertified radiologist, found mild supraspinatus and infraspinatus tendinosis with articular surface 

fraying and mild AC osteoarthrosis. He noted that no high-grade partial-thickness or fullthickness rotator cuff tear was identified.

In a July 25, 2016 report, Dr. Harry A. Doyle, a Board-certified psychiatrist and 

neurologist, reviewed a SOAF and appellant’s medical record. He noted a history of her 

June 22, 2010, September 21, 2012, and May 18, 2015 work injuries.3 Dr. Doyle also noted 

appellant’s current physical and emotional complaints and medical history. He reported findings 

on mental examination and diagnosed moderate major depressive disorder and somatic symptom 

disorder with pain. Dr. Doyle diagnosed appellant’s June 22, 2010 work conditions which 

included right-hand contusion, right hand crushing injury, right radial styloid tenosynovitis, and 

right radial never lesion. He also diagnosed conditions related to her September 21, 2012 work

injury which included sprain of the right knee and leg, right knee chondromalacia, medial 

 

3 Appellant’s claims for her June 22, 2010 and September 21, 2012 work injuries are assigned OWCP File Nos. 

xxxxxx370 and xxxxxx868, respectively. These other claims are not presently before the Board.
4

meniscus tear of the right knee, and abrasion of other multiple or unspecified sites without 

infection. Dr. Doyle noted appellant’s May 18, 2015 work injuries which included a sprain of 

the left shoulder and upper arm AC, left hip, left thigh, left knee, and left leg. He related that she

continued to have chronic pain and associated physical impairments due to residuals of the work 

injuries and had become progressively depressed by the cumulative impact of her physical 

impairments on her ability to function at work and home, resulting in her current depressive 

condition. Dr. Doyle, therefore, opined that appellant’s diagnoses of major depressive disorder 

and somatic symptom disorder with pain were due to the cumulative effects of her work injuries. 

He maintained that she was temporarily totally disabled from performing her rural carrier duties 

or any other gainful employment. Dr. Doyle further maintained that appellant’s residual physical 

and psychiatric impairments prevented her from performing at a consistent pace without an 

unreasonable number of rests, maintaining attention and concentration for extended periods, 

comprehending and following complex instructions, performing repetitive tasks on an ongoing 

basis, coping with work stressors, relating appropriately to coworkers and supervisors, and 

completing a normal workweek without interruptions from psychologically based symptoms. In 

addition, she was at increased risk for further psychological decompensation and worsening of 

depressive symptoms. Dr. Doyle recommended that she undergo a course of psychiatric 

treatment, including medication management.

By letter dated July 26, 2016, counsel contended that OWCP inappropriately merged the 

issues of whether appellant had any continuing employment-related residuals and whether she 

had any work-related disability. He further contended that the SOAF upon which Dr. McGovern 

based his opinion was deficient as it did not contain an accurate description of the mechanism of 

her injury or her two prior work-related right-hand and right knee injuries. Counsel asserted that

Dr. McGovern had not resolved the medical conflict between Drs. Prodoehl and Thompson as he

found that appellant continued to have residuals of the work injury and created a new conflict 

between him and Dr. Prodoehl regarding the level of her impairment. He asserted that based on

Dr. Doyle’s report she sustained emotional conditions that resulted in her total disability as a 

consequence of residuals from her current and prior work injuries. Counsel requested that these 

conditions be added to appellant’s claim. 

In a July 28, 2016 decision, OWCP terminated appellant’s wage-loss compensation 

benefits effective August 21, 2016. It found that the special weight of the medical evidence 

rested with Dr. McGovern’s impartial opinion. OWCP did not terminate appellant’s medical 

benefits. Although it referenced the issue of expansion of her claim, it did not issue a final 

decision.

By letter dated August 24, 2016, appellant, through counsel, requested a review of the 

written record by an OWCP hearing representative. He reiterated his prior contentions set forth 

in his July 26, 2016 letter. OWCP received several diagnostic test reports from Dr. Timothy

Chen, a Board-certified radiologist. In a June 23, 2015 left hip MRI scan report, Dr. Chen found 

no acute osseous injury. He found age indeterminate undersurface fraying of the anterior 

acetabular labrum without a discrete tear and mild left femoroacetabular joint chondrosis. Also, 

on June 23, 2015 Dr. Chen advised that a left knee MRI scan showed no acute meniscal tear or 

osseous/ligamentous injury. He found mild-to-moderate chondromalacia patella. In a 

September 24, 2015 cervical spine MRI scan report, Dr. Chen observed mild degenerative disc 

disease, worse at C4-5, with a small broad-based age-indeterminate right paracentral disc 
5

herniation causing mild canal stenosis without cord compression. On November 16, 2015 he 

related that a lumbar spine MRI scan revealed mild degenerative disc disease without disc 

herniation stenosis, or nerve root impingement. Dr. Chen found no acute osseous injury. 

In April 12 and July 28, 2016 reports, Dr. Milind P. Desai, a radiologist, indicated that 

appellant had received a steroid injection in the left hip under fluoroscopy to treat her pain. 

By letter dated September 15, 2016, counsel cited Board precedent and contended that 

where there was no conflict on other issues presented to an impartial medical examiner (IME), 

no special weight could be afforded to the IME’s opinion on those issues. 

In reports dated September 30 and November 18, 2016, Dr. Prodoehl reported appellant’s 

left knee, left shoulder, and left hip complaints and findings on examination. He reiterated his 

impression of left shoulder impingement and left hip strain. Dr. Prodoehl provided an 

impression of left shoulder rotator cuff tendinitis and AC degenerative joint disease (DJD) and 

left knee DJD status post left knee arthroscopy.

By decision dated December 27, 2016, an OWCP hearing representative affirmed the 

July 28, 2016 decision. She found that Dr. McGovern’s impartial medical opinion represented 

the special weight of the medical evidence and established that appellant’s employment-related 

disability had ceased.

LEGAL PRECEDENT -- ISSUE 1

Under FECA, once OWCP has accepted a claim it has the burden of proof to justify

termination or modification of compensation benefits.4 OWCP may not terminate compensation 

without establishing that the disability has ceased or that it was no longer related to the 

employment.5 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.6

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

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

shall appoint a third physician who shall make an examination.7 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 physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.8 

 

4

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

5 Charles E. Minniss, 40 ECAB 708, 716 (1989).

6

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

7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.
6

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.9

ANALYSIS -- ISSUE 1

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

compensation benefits effective August 21, 2016. 

OWCP accepted that appellant sustained a sprain of the left shoulder and upper arm AC 

and sprain of other specified sites of the left hip, left thigh, left knee, and left leg on May 18, 

2015 while in the performance of duty. It terminated her wage-loss compensation benefits 

finding that the accepted employment-related conditions no longer caused disability based on the 

opinion of the IME, Dr. McGovern, a Board-certified in orthopedic surgeon. It is OWCP that 

bears the burden of proof to justify modification or termination of benefits.10

OWCP referred appellant to Dr. McGovern for an impartial medical examination to 

resolve the conflict in medical opinion between Dr. Prodoehl, an attending Board-certified 

orthopedic surgeon, who opined that she continued to be totally disabled due to her May 18, 

2015 work injuries, and Dr. Thompson, an OWCP referral physician also Board-certified in 

orthopedic surgery, who found that she had no work-related residuals and could return to work 

with no restrictions. OWCP properly referred appellant to Dr. McGovern to resolve the conflict 

in medical opinion evidence, pursuant to 5 U.S.C. § 8123(a). 

In a March 25, 2016 report, Dr. McGovern reviewed the SOAF and appellant’s medical 

record. He documented essentially normal findings on examination. Dr. McGovern found that 

appellant had left shoulder strain and left knee sprain as a result of the May 18, 2015 work 

injuries. He opined that she only had mild residual stiffness in her left shoulder due to her 

accepted work injuries and could return to full-duty work as a rural carrier with no restrictions.

Dr. McGovern further opined that the accepted conditions should not be expanded because 

appellant’s preexisting arthritis in the left knee, left shoulder, and left hip as noted on diagnostic 

test results was not aggravated by the May 18, 2015 work injuries. 

The Board finds that Dr. McGovern’s opinion is based on a proper factual and medical 

background and is sufficiently well rationalized such that it is entitled to the special weight 

accorded to an IME and establishes that appellant has no continuing disability due to her 

accepted employment injuries.

The remaining evidence submitted prior to the termination of compensation is 

insufficient to overcome the weight accorded Dr. McGovern as an impartial medical specialist 

regarding whether appellant had any remaining work-related disability.

 

9

S.R., Docket No. 09-2332 (issued August 16, 2010); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. 

Godfrey, 52 ECAB 486 (2001).

10 See Curtis Hall, 45 ECAB 316 (1994); see also K.B., Docket No. 15-0011 (issued April 7, 2015).
7

Dr. Khan’s August 11, 2015 diagnostic test results addressed appellant’s left shoulder 

conditions, but did not offer an opinion on the relevant issue of whether she had continuing 

employment-related disability due to the accepted work injuries. The Board has found 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.11 

Dr. Doyle’s July 25, 2016 report found that appellant had moderate major depressive 

disorder and somatic symptom disorder with pain and was totally disabled from work due to her 

June 22, 2010, September 21, 2012, and May 18, 2015 work injuries. These conditions have not 

been accepted by OWCP as work related.12 While Dr. Doyle provided an opinion on causal 

relationship, he did not offer medical rationale explaining how the diagnosed conditions and 

resultant disability were caused or aggravated by the accepted injuries in the present claim. The 

Board has found that a medical opinion not fortified by medical rationale is of diminished 

probative value.13

The notes from appellant’s physical therapist have no probative medical value as a 

physical therapist is not considered a physician as defined under FECA.14 

Before OWCP and on appeal before the Board, counsel cited Board precedent and 

contended that Dr. McGovern’s report is not entitled to special weight as OWCP inappropriately 

merged the issues of whether appellant had any continuing employment-related residuals and 

whether she had any work-related disability. As stated, it referred her to Dr. McGovern to 

resolve a conflict in medical opinion between Dr. Prodoehl and Dr. Thompson regarding whether 

she had any disability causally related to her accepted May 18, 2015 work injuries. The referral 

was not based on a conflict in medical opinion regarding whether appellant had any continuing 

residuals of her accepted employment injuries. As such, the Board finds that OWCP properly 

adjudicated the issue of whether she had any continuing employment-related disability. As 

explained, OWCP has not terminated medical benefits.

Counsel further contends on appeal that the SOAF provided to Dr. McGovern failed to 

accurately describe the mechanism of injury and to include appellant’s two prior work injuries. 

He asserts that Dr. McGovern agreed with the attending physician’s opinion that she had 

continuing residuals of her current work injury and created a new conflict in medical opinion 

regarding the level of her impairment. Counsel maintains that there remains an unresolved 

conflict in the medical evidence and that the December 27, 2016 decision must be vacated and 

the matter remanded for further development. The Board notes that the SOAF reviewed by

 

11 K.H., Docket No. 16-0776 (issued October 19, 2016).

12 See T.M., Docket No. 08-0975 (issued February 6, 2009) (where a claimant claims that a condition not accepted 

or approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the 

condition is causally related to the employment injury through the submission of rationalized medical evidence). 

13 See R.C., Docket No. 15-0315 (issued May 4, 2015); Ceferino L. Gonzales, 32 ECAB 1591 (1981).

14 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, 

and physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this 

subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, 

and osteopathic practitioners within the scope of their practice as defined by State law).
8

Dr. McGovern contains an accurate description of the accepted May 18, 2015 work incident and 

appellant’s injuries arising therefrom. Further, the record before the Board does not indicate that 

OWCP combined her prior accepted claims with the instant accepted claim, and thus, there was 

no need to include the prior work injuries in the SOAF reviewed by Dr. McGovern. Moreover, 

no conflict was created in the medical opinion evidence between Drs. McGovern and Prodoehl

as Dr. McGovern found that, despite residuals of symptoms from the accepted conditions, she

could perform the regular full-time work of her position.

Lastly, counsel argues on appeal that OWCP neglected to address Dr. Doyle’s report that 

establishes that appellant sustained an emotional condition as a consequence of her accepted 

work injuries. Contrary to counsel’s contention, OWCP, in its July 28, 2016 decision, referenced

Dr. Doyle’s July 25, 2016 report and described it as insufficient to establish that she sustained an 

emotional condition as a consequence of the accepted May 18, 2015 employment injuries. 

However, the final decision did not include that finding in its holding and therefore is not a final 

decision before the Board pursuant to 20 C.F.R. § 501.2(c)(1). 

LEGAL PRECEDENT -- ISSUE 2

Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to 

appellant to establish that he or she has continuing disability after that date related to the

accepted injury.15 To establish causal relationship between the condition as well as any attendant 

disability claimed and the employment injury, an employee must submit rationalized medical 

evidence based on a complete medical and factual background, supporting such a causal 

relationship.16 Causal relationship is a medical issue and the medical evidence required to 

establish a causal relationship is rationalized medical evidence.17

ANALYSIS -- ISSUE 2

Following the termination of her wage-loss compensation benefits appellant submitted

Dr. Prodoehl’s September 30 and November 18, 2016 reports. In these reports, Dr. Prodoehl 

noted findings on physical examination and provided an impression of left shoulder 

impingement, left hip strain, left shoulder rotator cuff tendinitis and AC DJD, and left knee DJD 

status post left knee arthroscopy. The Board finds that he failed, however, to offer a medical 

opinion on causal relationship between the diagnosed conditions and the accepted work 

injuries.18 Moreover, the Board has long held that reports from a physician who was on one side

of a medical conflict that an medical impartial specialist resolved, are generally insufficient to 

overcome the special weight accorded to the report of the IME, or to create a new conflict.

19

 The 

Board notes that as Dr. Prodoehl was on one side of the conflict resolved by Dr. McGovern,

 

15 See Manuel Gill, 52 ECAB 282 (2001).

16 Id.

17 Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

18 Supra note 11.

19 I.J., 59 ECAB 408 (2008).
9

Dr. Prodoehl’s additional reports are of insufficient weight to overcome the special weight

accorded to Dr. McGovern’s opinion or to create a new medical conflict. 

Dr. Chen’s June 23, September 24, and November 16, 2015 diagnostic test results 

addressed appellant’s left hip and knee, cervical, and lumbar conditions, but did not offer an 

opinion stating that the diagnosed conditions and any resultant total disability were caused by the 

May 18, 2015 work injuries.20 Likewise, Dr. Desai’s April 12 and July 28, 2016 reports, noting

appellant’s treatment, are of limited probative value as the physician did not offer an opinion 

regarding whether any diagnosed condition and resulting disability were causally related to the

May 18, 2015 work injuries.

21

The Board finds that appellant did not establish continuing disability after November 15, 

2015 causally related to the accepted injuries.22

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 OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation benefits effective August 21, 2016. The Board further finds that appellant has not 

met her burden of proof to establish continuing disability after August 21, 2016. 

 

20 See supra note 11.

21 See supra note 11.

22 Virginia Davis-Banks, 44 ECAB 389 (1993); Dorothy Sidwell, 41 ECAB 857 (1990).
10

ORDER

IT IS HEREBY ORDERED THAT the December 27 and July 28, 2016 decisions of 

the Office of Workers’ Compensation Programs are affirmed.23

Issued: December 15, 2017

Washington, DC

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

23 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.