United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fresno, CA, Employer 

__________________________________________ 

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Docket Nos. 15-0281, 15-0679 

Issued: August 5, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 19, 2014 appellant filed a timely appeal from a November 5, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). He also filed an appeal on 

February 9, 2015 of a January 29, 2015 OWCP merit decision. 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 established an employment-related disability 

commencing May 22, 2014. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case was before the Board on a prior appeal.2 The facts and the circumstances set 

forth in the prior Board decision are incorporated herein by reference. The relevant facts are set 

forth below. 

On June 26, 2007 appellant, then a 42-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained injuries in a motor vehicle accident on June 21, 

2007 while in the performance of duty. OWCP has accepted the following conditions: abrasion 

of multiple sites; contusion of left knee; sprain of right hand; closed dislocation of left thumb; 

right shoulder rotator cuff tear; right shoulder impingement; right biceps rupture; cervical strain; 

cervical radiculopathy; aggravation of cervical degenerative disc disease; and herniated cervical 

disc. Appellant worked intermittently and received compensation for total disability on the 

periodic rolls commencing November 21, 2010. 

OWCP referred appellant for a second opinion examination by Dr. Mojinder Nijjar, a 

Board-certified orthopedic surgeon. In a report dated January 31, 2013, Dr. Nijjar provided a 

history and results on examination. He opined that appellant could return to his regular full-time 

job. Dr. Nijjar stated that appellant had good range of motion and a lifting restriction was not 

appropriate. 

Appellant received wage-loss benefits through June 14, 2013 and returned to work in a 

modified position on June 15, 2013. He filed a claim for a recurrence of disability (Form 

CA-2a), commencing June 22, 2013. OWCP denied the claim for compensation by decision 

dated September 5, 2013. By decision dated June 4, 2014, an OWCP hearing representative 

affirmed the September 5, 2013 decision. The Board found that appellant had not established a 

recurrence of disability from June 22 to August 23, 2013.3

 With respect to the medical evidence, 

the Board found that the reports from attending physicians Dr. Amajit Mangat, a preventive 

medicine specialist, and Dr. Ali Najafi, a Board-certified orthopedic surgeon, were insufficient to 

establish the claim. 

The record indicates that appellant continued to file Form CA-7 claims for compensation 

for August 24, 2013 and continuing. On November 19, 2013 appellant accepted a limited-duty 

job offer as a city carrier. 

Appellant continued to submit medical evidence with respect to disability. In a report 

dated February 11, 2014, Dr. Najafi diagnosed status post cervical fusion and indicated that 

appellant should remain off work for “an additional” week. In a report dated March 26, 2014, 

Dr. Mangat stated that appellant had reported increased neck pain after lifting a heavy box at 

work recently. He diagnosed chronic neck pain and indicated that appellant could work 

modified duty with a 20-pound lifting restriction. Dr. Najafi submitted a May 13, 2014 report 

diagnosing cervical disc degeneration. He indicated in a note dated May 13, 2014 that appellant 

should do no bending or lifting until surgery. 

 2

 Docket No. 14-1511 (issued March 2, 2015). 

3 Id. 
3

In a letter dated May 19, 2014, OWCP noted that appellant had claimed compensation 

from August 24 to November 15, 2013. It stated that the evidence did not establish an 

employment-related disability for the period claimed. In addition, on May 19, 2014 OWCP 

completed a referee physician referral form and a medical conflict statement. It found that the 

treating physicians, Dr. Najafi and Dr. Mangat, had found appellant to be disabled, but second 

opinion physician Dr. Nijjar opined in his January 31, 2013 report that appellant could return to 

full duty. OWCP prepared a statement of accepted facts (SOAF) dated May 19, 20144

 and found 

that a conflict existed as to whether appellant continued to have an employment-related 

disability. It prepared a list of questions for a referee physician on the issue. 

On May 28, 2014 appellant filed a claim for compensation (Form CA-7) claiming 

compensation as of May 22, 2014. He submitted additional CA-7 forms claiming compensation 

through July 31, 2014. 

In a report dated June 3, 2014, Dr. Mangat reported that appellant had complained of 

severe neck pain for the last four days and had been told by Dr. Najafi to go to the emergency 

room. According to Dr. Mangat, appellant had been told that he needed further cervical surgery. 

Dr. Mangat diagnosed neck pain and cervical degenerative disc disease. 

By report dated June 13, 2014, Dr. Mangat stated that appellant had reported getting off 

his mail truck, when he bent down and his neck popped, with pain and numbness in his arms. He 

stated that he continued to have neck pain with limited range of motion. Dr. Mangat stated that 

appellant would be disabled for two weeks. In a June 30, 2014 report, he indicated that appellant 

continued to have neck pain. Dr. Mangat indicated that appellant could return to work on 

June 27, 2014 with restrictions that included no more than 20 pounds lifting. By report dated 

July 8, 2014, he indicated that appellant was working modified duty. Dr. Mangat provided 

results on examination and reported appellant had neck pain and limited neck range of motion. 

He indicated that appellant should be off work from July 7 to 13, 2014. In a report dated July 14, 

2014, Dr. Mangat provided results on examination and indicated that appellant should be off 

work until July 31, 2014. 

By decision dated August 7, 2014, OWCP denied appellant’s claims for compensation for 

the period May 22 to July 31, 2014, finding that the medical evidence of record was insufficient 

to establish the claims. 

On August 9, 2014 appellant requested reconsideration of the August 7, 2014 decision 

and submitted a July 31, 2014 report from Dr. Najafi, who diagnosed cervical stenosis with 

radiculopathy. Dr. Najafi stated that appellant was “unable to perform his work duties.” He 

stated that she needed an anterior cervical discectomy and fusion C4-5. By report dated 

August 25, 2014, an OWCP medical adviser opined that the proposed surgery was appropriate. 

 4

 The SOAF states that appellant stopped work on January 30, 2014. In this regard Dr. Mangat had reported in a 

January 28, 2014 report that appellant was placed off work from January 28 to 30, 2014. As noted above, Dr. Najafi 

indicated in his February 11, 2014 report that appellant should be off work for an additional week. But Dr. Najafi 

reported in his May 13, 2014 that appellant worked eight hours per day. The record does not contain a Form CA-7 

claiming compensation during the period January 28 to May 21, 2014, and appellant’s work history from January 28 

to May 21, 2014 is not clear from the record. 
4

On August 19, 2014 appellant filed a Form CA-7 claim for compensation from July 31 to 

August 15, 2014. He continued to file Form CA-7 claims for compensation through 

November 28, 2014.5 

Appellant requested reconsideration of his claim on September 6, 2014. By letter dated 

September 9, 2014, OWCP advised him that a referee physician, Dr. Perminder Bhatia, a Boardcertified neurologist, had been selected to resolve a conflict in medical opinion between treating 

physicians Drs. Najafi and Mangat, who found appellant disabled and second opinion physician 

Dr. Nijjar, who found that appellant could return to full duty. An appointment for an impartial 

medical evaluation with Dr. Bhatia was scheduled for October 29, 2014. Dr. Bhatia was asked 

specifically to determine whether appellant continued to suffer residuals of the accepted work 

injury and the nature and extent of any work-related disability.6

 

By decision dated October 28, 2014, OWCP denied appellant’s claim for compensation 

for the period July 31 to October 17, 2014. It found that the medical evidence of record was 

insufficient to establish the claim. 

By decision dated November 5, 2014, OWCP denied modification of its August 7, 2014 

decision. 

The record indicates that on November 5, 2014 appellant underwent cervical surgery. In 

a report of that date, Dr. Najafi described the surgery as anterior cervical discectomy with partial 

corpectomy of C4 and C5 for decompression of nerve roots and spinal cord. 

On November 7, 2014 appellant requested reconsideration of the October 28, 2014 

decision. 

In a report dated November 10, 2014, Dr. Bhatia, the referee physician, provided a 

history and results of a November 8, 2014 examination.7

 He diagnosed: cervical 

musculoskeletal ligamental pain status post cervical laminectomy for cervical disc disease and 

degenerative changes; significant cervical disc disease, still present mainly C3-C4, C4-C5 and 

again C7-TI level with compression of the right side CX nerve root and also C5-C6 nerve root, 

status post right shoulder impingement syndrome, status post rotator cuff tear surgery and SLAP 

repair, which had almost returned back to normal, left hand, first metacarpophalangeal ulnar 

ligament joint surgery, headaches; secondary to cervicogenic in nature due to cervical disc 

disease and also muscle spasm, and tremors of the right upper extremity, more prominent than 

the left side which were more likely nonindustrial in nature. 

 5

 The record indicates that appellant began receiving wage-loss compensation as of November 5, 2014, the date of 

the cervical surgery. 

6

 The record also contains an ME023 appointment schedule notification and notes regarding physicians bypassed 

by the referee selection process. 

7

 With respect to cervical surgery, Dr. Bhatia stated that appellant had authorization for surgery “on November 1, 

2014, which is three or four days from today.” He does not explain the discrepancy between this statement and a 

date of examination reported as November 8, 2014. 
5

As to disability, Dr. Bhatia opined that appellant could not perform his regular job and 

could not work full time with restrictions. He stated that this was because of the cervical disc 

disease, radiculopathy, significant pain, and the proposed surgery. According to Dr. Bhatia, 

appellant would be restricted to 10 pounds lifting even if surgery was not planned. He indicated 

that appellant could work a sedentary job, such as computer or data entry, with some breaks in 

between. Dr. Bhatia also completed an OWCP-5c work capacity evaluation. 

In a decision dated January 29, 2015, OWCP denied modification of the October 28, 

2014 decision, finding that the evidence of record was insufficient to warrant modification. It 

noted that while referee physician Dr. Bhatia did not directly address the period of disability 

commencing May 22, 2014, he did opine that as of the date of surgery, if the patient had not been 

scheduled for surgery, he could work in some fashion on the job until then. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA8

 has the burden of establishing the essential 

elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.9 The term disability is 

defined as the incapacity because of an employment injury to earn the wages the employee was 

receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning 

capacity.10 Whether a particular injury causes an employee to be disabled for employment and 

the duration of that disability are medical issues which must be proved by a preponderance of the 

reliable, probative, and substantial medical evidence.11 However, regardless of the burden of 

proof, when the case is referred to a referee physician, the referee must resolve the issues 

presented.12

ANALYSIS 

In the present case, the history above indicates there are both factual and medical issues 

that have not been properly addressed by OWCP. The Board notes that appellant’s work history 

was not clearly stated in the May 19, 2014 SOAF. Appellant apparently had begun working in a 

modified position on November 19, 2013. It is not clear what those specific job duties were, or 

the specific physical requirements. It is also not clear how long appellant worked in the position 

or whether the position remained available. The SOAF refers to a work stoppage on January 30, 

2014, but the CA-7 forms claim compensation commencing May 22, 2014. 

 8 Supra note 1. 

9 Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 

10 20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no 

loss of wage-earning capacity). 

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

12 See L.J., Docket No. 13-1920 (issued February 18, 2014); Thomas J. Fragale, 55 ECAB 619 (2004). 
6

Moreover, OWCP undertook development of the medical evidence that was not properly 

addressed in the decisions on appeal. On May 19, 2014 it had declared a conflict in the medical 

evidence under 5 U.S.C. § 8123(a).13 The underlying medical issue was whether appellant 

continued to have an employment-related condition or disability. The attending physicians, 

Drs. Mangat and Najafi, had continued to indicate that appellant had work restrictions and 

periods of total disability due to an employment-related condition. The second opinion 

physician, Dr. Nijjar, opined in his January 31, 2013 report that appellant could return to full 

duty. 

To resolve the conflict, OWCP selected Dr. Bhatia as a referee physician. Dr. Bhatia, 

however, did not provide an opinion as to the specific, claimed periods of employment-related 

disability. The issue presented in this case regarding the claimed periods of disability was within 

the scope of the conflict in the medical evidence that Dr. Bhatia was selected to resolve. 

Therefore, the case will be remanded to OWCP for further development of the factual and 

medical evidence. OWCP should clarify the factual issues including the physical requirements 

of appellant’s modified-duty job, when it was performed, and whether it remained available 

during the claimed periods of disability. The SOAF should properly reflect OWCP’s findings. 

OWCP should then secure a supplemental report from Dr. Bhatia on the medical issues presented 

regarding employment-related disability prior to the cervical surgery on November 5, 2014. 

After such further development as is necessary, OWCP should issue an appropriate decision. 

CONCLUSION 

The Board finds the case is not in posture for decision and is remanded for further 

development. 

 13 FECA provides that, if there is a 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 the 

examination. 5 U.S.C. § 8123(a). 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 OWCP medical 

adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial 

examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case. 20 C.F.R. § 10.321. 
7

ORDER 

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

Compensation Programs dated January 29, 2015 and November 5, 2014 are set aside and the 

case remanded for further action consistent with this decision of the Board.14 

Issued: August 5, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 James A. Haynes, Alternate Judge participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.