United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Broken Arrow, OK, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1599 

Issued: January 11, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 3, 2016 appellant, through counsel, filed a timely appeal from a June 30, 2016 

merit decision 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. 

ISSUES 

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

entitlement to wage-loss compensation and medical benefits on September 21, 2012 because the 

 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

accepted conditions had resolved with no residuals; and (2) whether appellant met his burden of 

proof to establish that he had continuing employment-related disability after September 21, 2012 

due to the accepted conditions. 

On appeal counsel asserts that OWCP’s June 30, 2016 decision is contrary to fact and 

law. 

FACTUAL HISTORY 

This case has previously been before the Board. In a February 22, 2012 decision, the 

Board found that appellant failed to establish total disability for the period May 20 to October 1, 

2010 due to a May 20, 2010 employment injury, adjudicated by OWCP under File No. 

xxxxxx969.3

 The facts outlined in the prior Board decision are incorporated herein by 

reference.4

During the pendency of appellant’s appeal before the Board, on February 9, 2012 OWCP 

combined File No. xxxxxx969 and File No. xxxxxx742, with the latter serving as the master 

file.5

 

On February 10, 2012 OWCP referred appellant to Dr. Dennis E. Foster, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine whether appellant’s 

accepted conditions had resolved and whether he could return to his date-of-injury job. In a 

March 1, 2012 report, Dr. Foster noted his review of the statement of accepted facts and medical 

record. He described appellant’s complaints of neck, back, and left shoulder pain, and physical 

examination findings. Dr. Foster indicated that, in spite of appellant’s subjective complaints, 

there were very few objective findings that would substantiate an underlying problem. He 

advised that continued treatment, including therapy, was not indicated. In answer to specific 

OWCP questions, Dr. Foster repeated that there was no objective evidence that the accepted 

conditions were currently active and disabling, that no aggravation had occurred, and that 

appellant could return to his date-of-injury position as a distribution clerk. In an attached work 

 3

 Docket No. 11-1694 (issued July 27, 2012); petition for recon. denied July 27, 2012. 

4

 On May 20, 2010 appellant, a distribution clerk, injured his back and neck when G.H., the postmaster, placed a 

large amount of mail flats onto his arm and pushed down on it. He stopped work that day and did not return. 

OWCP accepted sprains to the lumbar region of the back, neck, shoulder, and rotator cuff of the left upper arm. 

Appellant filed claims for disability compensation for the period May 20 to October 1, 2010. In decisions dated 

November 24, 2010 and June 3, 2011, OWCP denied his claim for disability compensation for the period May 20 to 

October 1, 2010, finding that the medical evidence of record was insufficient to establish disability from work due to 

the May 20, 2010 work injury. 

5

 Under File No. xxxxxx742, OWCP had accepted neck and thoracic sprains from a June 19, 1998 injury. On 

April 7, 2015 it denied appellant’s claim for a schedule award. In a June 17, 2015 decision, OWCP denied his claim 

for a May 20, 2010 recurrence of disability, and, in a March 17, 2016 merit decision, it denied modification of the 

June 17, 2015 decision. Appellant did not appeal any of these decisions. He also has a third claim, File No. 

xxxxxx366, for a June 19, 1998 employment injury. A note appended to a development letter from OWCP to 

appellant dated December 15, 2009 indicated that he was still working and was not on light duty. By decision dated 

February 16, 2010, OWCP denied his claim from a recurrence of disability under this file number. 
3

capacity evaluation, he advised that appellant could work in his usual job with no restrictions, 

and that maximum medical improvement (MMI) had been reached. 

On April 27, 2012 appellant, through counsel, requested reconsideration with respect to 

OWCP’s denial of disability compensation. The employing establishment reported that appellant 

stopped work in May 2010 and had been removed from employment for cause for failure to 

report for work. 

Dr. Don Barney, an attending osteopath, who began treating appellant in 2010, submitted 

a work capacity evaluation (Form 5c) on March 14, 2012. He advised that appellant could not 

perform his usual job and had a restriction of one hour reaching above the shoulder until the fear 

factor was resolved. Dr. Barney noted that appellant’s injury was not the cause of his disability, 

and that he could work as many hours as tolerated and could work without limits. On May 14, 

2012 he reported that appellant’s left shoulder and wrist had been a problem for some time and 

that his current problem was stress in having to work for his former boss, G.H. Dr. Barney 

described appellant’s job duties and noted that he had an altercation when G.H. handed him a 

bundle of mail and left work, and the stress of dealing with G.H. caused him to keep from 

returning to work. He advised that appellant’s left upper extremity had some restricted range of 

motion and that he also had lumbar spasms. Dr. Barney diagnosed severe stress syndrome, 

derangement of the left shoulder, left shoulder rotator cuff tear, and lumbar pain, acute and 

chronic. He recommended that appellant work at a different postal location. 

Appellant also submitted an August 16, 2010 report from Judith K. Adams, Ph.D., a 

clinical psychologist, who described counselling sessions with him. Dr. Adams advised that he 

was very apprehensive and anxious about any thought of returning to work due to problems with 

his supervisor. She diagnosed major depressive disorder, recurrent, moderate, and indicated that 

appellant had substantial occupational impairment. 

Dr. Deborah A. Kucharski, a chiropractor, performed a functional capacity evaluation on 

July 2, 2012. She indicated that appellant could do more physically than he demonstrated during 

testing, noting limitations in testing caused by reports of pain. Dr. Kucharski reported that he 

was unwilling to continue in occupational therapy, maintaining that it caused too much pain. 

OWCP determined that a conflict in medical evidence had been created between the 

opinions of Dr. Foster and Dr. Barney regarding appellant’s ability to work, and in July 2012 

referred appellant to Dr. Sami Framjee, a Board-certified orthopedic surgeon, for an impartial 

evaluation.6

 In an August 8, 2012 report, Dr. Framjee noted his review of the medical record and 

that appellant had not worked since May 20, 2010. He described appellant’s medical and work 

history, and current symptoms of neck, upper and lower back, and left shoulder pain that were 

vague and nonspecific in nature. Dr. Framjee noted that appellant appeared depressed and 

advised that he complained of pain on superficial touch on examination of the cervical and 

thoracolumbar spine. Sensory examination revealed diffuse, nonorganic hypesthesia in the left 

arm and left leg. Straight-leg raising was negative bilaterally. Left shoulder examination 

revealed no swelling, deformity, atrophy, or tenderness to palpation. Range of motion was 

limited by appellant, and there was no clinical evidence of rotator cuff tear. 

 6

 Dr. Framjee is also Board-certified in internal medicine and cardiovascular disease. 
4

Dr. Framjee advised that he saw no anatomical injury to appellant’s cervical spine, 

thoracic spine, lumbar spine, or left shoulder secondary to the May 20, 2010 work incident. He 

opined that appellant had reached MMI. In answer to specific questions, Dr. Framjee indicated 

that appellant had no clinical evidence of active strain/sprain of the cervical spine, thoracic spine, 

lumbar spine, or left shoulder and no evidence of aggravation. He opined that appellant could 

return to his date-of-injury job as a distribution clerk, and no further medical treatment was 

indicated secondary to the May 20, 2010 injury. On an August 8, 2012 work capacity 

evaluation, Dr. Framjee repeated that appellant could return to normal work. 

In a merit decision dated August 21, 2012, OWCP denied modification of its prior 

decisions regarding appellant’s entitlement to disability compensation for the period May 20 to 

October 1, 2010. 

On August 21, 2012 OWCP proposed to terminate appellant’s entitlement to wage-loss 

compensation and medical benefits. It found that Dr. Framjee’s opinion constituted the weight 

of the medical evidence. 

In reports dated August 13 and September 5, 2012, Dr. Barney described appellant’s 

condition. He noted his review of Dr. Framjee’s report, opining that it did not appear that 

Dr. Framjee used the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides hereinafter),7

 in assessing appellant’s 

condition, and disagreed with his assessment and that of Dr. Foster. Dr. Barney concluded that 

appellant’s May 2010 injury related back to his June 1998 injury.8

 

By decision dated September 21, 2012, OWCP finalized the termination of appellant’s 

entitlement to wage-loss compensation and medical benefits. It found that the special weight of 

the medical evidence rested with the referee opinion of Dr. Framjee. 

Appellant, through counsel, timely requested a hearing. He submitted treatment notes 

from Dr. Barney dated September 27 and October 31, 2012, in which the physician noted 

findings of pain and discomfort in the shoulder and lumbosacral area. Dr. Barney reiterated his 

diagnoses. In a letter dated October 31, 2012 to the Oklahoma Department of Social Security, he 

related that appellant had been diagnosed with severe bilateral carpal tunnel syndrome caused by 

his 18-year history as a mail sorter. Dr. Barney opined that appellant should be granted disability 

retirement. 

At the hearing held on December 4, 2012 appellant testified that he had a 1998 claim 

where a mail case fell on his shoulder and back, a 2009 claim where he was injured picking up 

pallets, and a 2010 claim where the postmaster shoved a foot of flats into his arms, pushing with 

his body weight. He stated that since the 1998 injury he had continuing neck and shoulder pain, 

had worked modified duty since that time, and had only worked two to three days a week after 

the 2009 injury. Appellant also noted that he had filed an Equal Employment Opportunity 

(EEO) claim against the postmaster and felt that the 2010 incident was in retaliation. He 

 7

 A.M.A., Guides (6th ed. 2009). 

8 Supra note 5. 
5

indicated that he had felt anxiety since the 1998 injury, but had never filed a claim for stress, and 

that due to the severe pain he had experienced since May 20, 2010, he had not returned to work. 

Counsel asserted that all three claims should be combined, and that Dr. Framjee should have 

commented on all injuries. 

By decision dated January 29, 2013, an OWCP hearing representative found that the 

special weight of the medical evidence rested with the opinion of Dr. Framjee, the referee 

physician, and affirmed the September 21, 2012 termination decision. 

In letters received by OWCP on February 2 and 13, 2013, appellant requested 

reconsideration. He asserted that both Dr. Foster and Dr. Framjee only saw him for five minutes 

each and that Dr. Barney’s opinion should carry the weight of the evidence. 

In a merit decision dated July 15, 2013, OWCP denied modification of its prior decisions. 

It found that the medical evidence presented was insufficient to alter the prior decisions. 

Appellant again requested reconsideration on July 22, 2013. He submitted evidence 

previously of record, including a duplicate of Dr. Barney’s October 31, 2012 letter to the 

Oklahoma Department of Social Security. Appellant asserted that the federal workers’ 

compensation system was corrupt. 

In a merit decision dated August 26, 2013, OWCP denied modification of its prior 

decision. 

On September 10, 2013 appellant again requested reconsideration. He again forwarded 

Dr. Barney’s October 31, 2012 letter. Appellant discussed the 1998 and 2009 injuries, and 

asserted that he had anxiety disorders dating back to 1998. He reported that he had retired on 

disability.9

 

In a merit decision dated December 12, 2013, OWCP denied modification of its prior 

decision. 

Appellant, through counsel, again requested reconsideration on December 11, 2014. In 

reports dated January 28 through November 26, 2014, Dr. Barney noted that appellant reported 

that he was injured while working at the employing establishment. He described appellant’s 

complaints and findings. Dr. Barney diagnosed sprain of the lumbar region, sprain of the neck, 

left rotator cuff sprain, and anxiety syndrome. In May 22, 2014 correspondence, he observed 

that neither Dr. Foster nor Dr. Framjee had applied the A.M.A., Guides to his analysis. 

Dr. Barney requested that appellant be allowed to receive medications for his discomfort due to 

the accepted conditions and should receive disability retirement. He noted that appellant had a 

severe anxiety disorder that rendered him unable to return to work with his previous postmaster, 

G.H., and requested help for appellant to obtain a schedule award.10

 9

 On August 4, 2013 appellant filed an occupational disease claim (Form CA-2) for carpal tunnel syndrome. The 

record before the Board does not indicate that OWCP has adjudicated this claim. 

10 Supra note 5. As noted, by decision dated April 7, 2015, OWCP denied appellant’s claim for a schedule award. 

Appellant did not file an appeal with the Board from this decision. 
6

In a merit decision dated March 11, 2015, OWCP discussed the evidence submitted on 

reconsideration and denied modification of the prior decisions. 

Appellant again requested reconsideration on August 7, 2015.11 

In monthly reports dated January 26, 2015 to February 26, 2016, Dr. Barney reiterated his 

findings and conclusions. In correspondence dated June 24 and July 31, 2016, he opined that 

appellant’s problems were due to his May 20, 2010 employment injury, and that he needed 

continued treatment and medical care. 

In a merit decision dated June 30, 2016, OWCP again found that the special weight of the 

medical evidence rested with the opinion of Dr. Framjee, the impartial medical specialist, and 

denied modification of its prior decisions. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits. It may not terminate compensation 

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

employment.12 OWCP’s burden of proof in terminating compensation includes the necessity of 

furnishing rationalized medical opinion evidence based on a proper factual and medical 

background.13 

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.14 The implementing regulations 

provide 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.15 When there exist 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.16 

 11 Appellant also filed a recurrence claim on November 3, 2015 (Form CA-2a) indicating that the claimed 

recurrence began on May 20, 2010, and was due to back, neck, shoulder pain, depression, and anxiety. He requested 

approval of medical visits and medications. On April 5, 2015 OWCP noted that the recurrence claim would be 

deleted and included with appellant’s request for reconsideration. 

12 Jaja K. Asaramo, 55 ECAB 200 (2004). 

13 Id.

14 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

15 20 C.F.R. § 10.321. 

16 V.G., 59 ECAB 635 (2008). 
7

ANALYSIS -- ISSUE 1 

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

compensation and medical benefits effective September 21, 2012. The accepted conditions 

under the combined claim are sprains to the lumbar region of the back, neck, shoulder, and 

rotator cuff of the left upper arm. OWCP determined that a conflict in medical evidence had 

been created between the opinions of Dr. Barney, an attending osteopath, and Dr. Foster, an 

OWCP referral physician regarding appellant’s work capabilities and whether he had continuing 

employment-related disability. It then properly referred him to Dr. Framjee, also Board-certified 

in orthopedic surgery, for an impartial evaluation to resolve the conflict. 

In an August 8, 2012 report, Dr. Framjee noted his review of the medical record and that 

appellant had not worked since May 20, 2010. He described appellant’s medical and work 

history, and current symptoms of neck, upper and lower back, and left shoulder pain that were 

vague and nonspecific in nature. Dr. Framjee thoroughly described examination findings and 

advised that appellant had no clinical evidence of active strain/sprain of the cervical spine, 

thoracic spine, lumbar spine, or left shoulder, and no evidence of aggravation. He opined that 

appellant could return to his date-of-injury job as a distribution clerk, and no further medical 

treatment was indicated. On an August 8, 2012 work capacity evaluation, Dr. Framjee repeated 

that appellant could return to normal work. 

The Board finds that Dr. Framjee provided a comprehensive, well-rationalized opinion in 

which he clearly advised that any residuals of appellant’s accepted conditions had resolved and 

that he could return to his normal work. Dr. Framjee’s opinion is therefore entitled to the special 

weight accorded an impartial examiner and constitutes the weight of the medical evidence.17 

The medical evidence appellant submitted prior to the termination was insufficient to 

overcome the weight accorded Dr. Framjee, as an impartial medical specialist. In reports dated 

August 13 and September 5, 2012, Dr. Barney described appellant’s condition and disagreed 

with his assessment and that of Dr. Foster. He also indicated that the A.M.A., Guides should be 

used in assessing disability. The Board has long held that reports from a physician who was on 

one side of a medical conflict are generally insufficient to overcome the weight accorded to the 

report of the impartial medical examiner, or to create a new conflict.18 Dr. Barney had been on 

one side of the conflict resolved by Dr. Framjee. Moreover, the A.M.A., Guides is not utilized 

under FECA to assess disability with respect to wage loss, but only to assess permanent partial 

impairment for schedule award purposes.19 Disability is not synonymous with physical 

impairment, which may or may not result in an incapacity to earn wages.20

The Board therefore concludes that Dr. Framjee’s opinion that appellant had recovered 

from the accepted conditions is entitled to the special weight accorded an impartial medical 

 17 See Sharyn D. Bannick, 54 ECAB 537 (2003). 

18 I.J., 59 ECAB 408 (2008). 

19 See 20 C.F.R. § 10.404; 5 U.S.C. § 8107. 

20 Merle J. Marceau, 53 ECAB 197 (2001). 
8

examiner,21 and the additional medical evidence submitted is insufficient to overcome the weight 

accorded him as an impartial medical specialist regarding whether appellant had residuals of his 

accepted conditions. OWCP therefore properly terminated appellant’s entitlement to wage-loss 

compensation and medical benefits on September 21, 2012.22

LEGAL PRECEDENT -- ISSUE 2 

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

compensation and medical benefits on September 21, 2012, the burden shifted to him to establish 

that he had any continuing disability causally related to the accepted conditions.23 Causal 

relationship is a medical issue. The opinion of the physician must be based on a complete factual 

and medical background of the claimant, must be one of reasonable medical certainty, and must 

be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.24 

ANALYSIS -- ISSUE 2 

The Board finds that appellant submitted insufficient medical evidence, following the 

September 21, 2012 termination, to establish that he continued to be disabled due to the accepted 

conditions. 

Following the termination, appellant submitted reports from Dr. Barney dated 

September 27, 2012 to February 26, 2016. Dr. Barney was consistent in his opinion that 

appellant continued to have residuals of employment injuries. However, as noted, he had been 

on one side of the conflict in medical evidence. Moreover, a medical report is of limited 

probative value on the issue of causal relationship if it contains a conclusion regarding causal 

relationship, which is unsupported by medical rationale.25 Dr. Barney merely reiterated that 

appellant’s problems were due to employment injuries, and that he needed continued treatment 

and medical care. 

Dr. Barney also noted that appellant had severe anxiety regarding returning to work at the 

employing establishment. The record, however, does not indicate that appellant has filed a claim 

for an employment-related emotional condition.26

 21 See supra note 17. 

22 Manuel Gill, 52 ECAB 282 (2001). 

23 See Joseph A. Brown, Jr., 55 ECAB 542 (2004). 

24 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

25 T.M., Docket No. 08-975 (issued February 6, 2009). 

26 See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or 

approved by OWCP was due to an employment injury, he bears the burden of proof to establish that the condition is 

causally related to the employment injury). 
9

As to appellant’s assertion at the hearing that he had worked modified duty since a 1998 

employment injury, the record before the Board includes a statement appended to a letter 

addressed to him indicating that he was not on light duty in 2009 when he filed a recurrence of 

disability under that claim.27

CONCLUSION 

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

to wage-loss compensation and medical benefits affect the September 21, 2012, and that 

appellant failed to meet his burden of proof to establish continuing employment-related disability 

after that date causally related to the May 20, 2010 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the June 30, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 11, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 27 Supra note 5.