United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.W., Appellant 

and 

DEPARTMENT OF HOUSING & URBAN 

DEVELOPMENT, Wilmington, DE, Employer 

__________________________________________ 

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Docket No. 17-0455 

Issued: August 21, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 20, 2016 appellant, through counsel, filed a timely appeal from an 

August 29, 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. 

 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

ISSUE 

The issue is whether appellant met her burden of proof to establish a left upper extremity 

condition, an aggravation of a right upper extremity condition, and/or a cervical condition 

causally related to factors of her federal employment. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts and circumstances as set forth 

in the prior Board decisions are incorporated herein by reference. The relevant facts are as 

follows. 

On January 3, 2007 appellant, then a 54-year-old secretary, filed an occupational disease 

claim (Form CA-2) alleging that she sustained pain in her right shoulder, arm, wrist, and neck, 

and her left arm, wrist, and hand causally related to factors of her federal employment. She had 

stopped work on March 3, 2006.3

Dr. Scott M. Fried, an attending Board-certified orthopedic surgeon, in reports dated 

2005 to 2007, diagnosed right ulnar and median neuropathy, right brachial plexopathy, cervical 

radiculopathy, right neuritis, a repetitive strain injury, possible bilateral carpal tunnel syndrome, 

right shoulder capsulitis, and a partial thickness tear of the right rotator cuff. He attributed the 

diagnosed conditions to appellant’s work duties. 

Dr. Zohar Stark, a Board-certified orthopedic surgeon and OWCP referral physician, 

determined in a September 23, 2008 report that appellant did not sustain an employment-related 

cervical or bilateral upper extremity condition. He found no objective evidence supporting a 

cervical or upper extremity condition. 

In decisions dated October 16, 2008 and May 19, 2009, OWCP denied appellant’s 

occupational disease claim.4 It found that Dr. Stark’s opinion constituted the weight of the 

evidence and established that she did not sustain a bilateral upper extremity or cervical condition 

causally related to the identified work factors. 

 3

 In a prior decision assigned OWCP File No. xxxxxx429, dated December 11, 2006, OWCP accepted a sprain of 

the right shoulder and arm at the rotator cuff, a sprain of the right shoulder and upper arm at an unspecified site, and 

a right rotator cuff tear. Following authorized surgery, appellant returned to part-time employment on March 14, 

2005, increasing to full time until she filed a claim for recurrence of disability (Form CA-2a) beginning 

March 3, 2006. In a December 22, 2008 decision, the Board found that appellant had not established a recurrence of 

disability beginning March 13, 2006 due to her accepted work injury under File No. xxxxxx429. Docket No. 08-

0974 (issued December 22, 2008). 

4

 In a decision dated April 3, 2007, OWCP denied appellant’s occupational disease claim as she had not submitted 

sufficient supporting medical evidence; however, on October 2, 2007 an OWCP hearing representative vacated the 

April 3, 2007 decision and remanded the case for OWCP to refer her for a second opinion examination. It again 

denied the claim on March 20, 2008. In a decision dated June 17, 2008, an OWCP hearing representative vacated 

the March 20, 2008 decision as the opinion of the second opinion examiner was not rationalized. She instructed 

OWCP to obtain a new second opinion examination. 
3

Appellant appealed to the Board. In a decision dated August 24, 2010, the Board set 

aside the May 19, 2009 decision.5

 It determined that a conflict in medical opinion existed 

between Dr. Fried and Dr. Stark regarding whether she had an employment-related bilateral 

upper extremity or cervical condition. The Board remanded the case for OWCP to refer her to an 

impartial medical examiner for resolution of the conflict. 

By decision dated February 24, 2011, OWCP denied appellant’s occupational disease 

claim finding that the opinion of Dr. Karl Rosenfeld, a Board-certified orthopedic surgeon and 

impartial medical examiner, constituted the weight of the evidence and established that she had 

not sustained an upper extremity or cervical condition due to work factors. In a decision dated 

September 8, 2011, an OWCP hearing representative affirmed the February 24, 2011 decision. 

Appellant again appealed to the Board. By decision dated July 3, 2012, the Board set 

aside the September 8, 2011 decision.6 The Board determined that Dr. Rosenfeld’s opinion was 

insufficient to resolve the conflict in medical opinion as he had not sufficiently addressed 

whether she sustained an orthopedic condition due to work factors. The Board instructed OWCP 

to obtain a supplemental report from Dr. Rosenfeld regarding whether the identified work 

activities caused or aggravated an upper extremity or cervical condition. 

After receiving a supplemental report from Dr. Rosenfeld, in a decision dated January 24, 

2013, OWCP denied appellant’s claim for a left upper extremity condition, an aggravation of a 

right upper extremity condition, and a cervical condition due to factors of her federal 

employment. It found that the supplemental report from him was of sufficient weight to deny 

her claim. 

On January 29, 2013 appellant, through counsel, requested an oral hearing. By decision 

dated August 8, 2013, an OWCP hearing representative vacated the January 24, 2013 decision. 

She found that Dr. Rosenfeld’s supplemental report was insufficient to resolve the conflict and 

instructed OWCP to refer appellant for a new impartial medical examination. OWCP forwarded 

appellant to Dr. Charles Hummer, a Board-certified orthopedic surgeon and impartial medical 

examiner. 

OWCP, by decision dated March 21, 2014, denied appellant’s occupational disease 

claim. It found that the opinion of Dr. Hummer established that she did not have an 

employment-related shoulder condition. 

Appellant, through counsel, requested an oral hearing, which was held on June 10, 2014. 

By decision dated July 29, 2014, an OWCP hearing representative determined that OWCP had 

not clearly set forth the questions to be addressed by Dr. Hummer and further found that his 

report and addenda did not adequately address whether work duties caused her upper extremity 

conditions. She determined that OWCP should clearly differentiate between the prior right arm 

accepted claim under File No. xxxxxx429 and the current claim for an occupational disease due 

to work activities from the date appellant resumed work after her prior right arm injury in 

 5

 Docket No. 09-2129 (issued August 24, 2010). 

6

 Docket No. 12-0258 (issued July 3, 2012). 
4

March 2005 until the date she stopped work in March 2006. The hearing representative 

instructed OWCP to obtain an opinion from a new impartial medical adviser. 

OWCP, by letter dated November 19, 2014, referred appellant to Dr. David Pashman, a 

Board-certified orthopedic surgeon, for an impartial medical examination. It asked him to 

determine whether she had sustained a left upper extremity condition due to the work factors 

identified in the statement of accepted facts. 

In a December 18, 2014 report, Dr. Pashman discussed appellant’s history of a right 

rotator cuff repair in February 2005 following which she returned to work with lifting restrictions 

until March 2006. He discussed her complaints of neck pain, right arm pain, and low back pain. 

Dr. Pashman reviewed the medical evidence of record, including the results of electrodiagnostic 

studies, and provided detailed findings on examination. He diagnosed a repetitive right shoulder 

strain and rotator cuff tear, status post right shoulder surgery, degenerative disc disease of the 

cervical spine with a concomitant C6-7 syrinx, multiple subjective upper extremity complaints 

with symptom magnification, and possible bilateral median neuropathy, more so on the right 

side. Dr. Pashman noted that appellant had no “objective evidence of any muscle wasting or 

atrophy. Appellant does have some grip strength weakness in her right upper extremity 

compared to her contralateral left, but is reasonably strong at this point in time.” Dr. Pashman 

advised that, to determine whether she had a strain or rotator cuff tear on the right side, he would 

need to review diagnostic studies and records from the other claim. He found “no objective 

evidence of any traumatically-induced pathology in her left shoulder” or cervical spine. 

By decision dated January 22, 2015, OWCP denied the claim as the medical evidence did 

not support that appellant sustained an employment-related left arm condition. 

On January 29, 2015 appellant, through counsel, requested an oral hearing. Following an 

August 28, 2015 hearing, in a decision dated December 7, 2015 an OWCP hearing representative 

vacated the January 22, 2015 decision. She noted that Dr. Pashman found that appellant had no 

traumatic injury to the cervical spine and left shoulder, but did not address whether she sustained 

a left upper extremity condition, an aggravation of a right upper extremity condition, or a 

cervical condition due to employment factors from March 2005 to 2006. The hearing 

representative also noted that it was unclear whether Dr. Pashman had the complete case record. 

On remand, she instructed OWCP to amend the statement of accepted facts to specifically 

include a right shoulder condition and right shoulder surgery in 2005 under File No. xxxxxx429. 

The hearing representative determined that it should obtain an opinion from Dr. Pashman 

regarding whether appellant experienced a cervical spine or upper extremity condition due to her 

employment from the date she resumed work in March 2005 until her work stoppage in 

March 2006. She indicated that OWCP should provide the physician with the complete case 

record to include the accepted right shoulder claim in File No. xxxxxx429. The hearing 

representative further found that Dr. Pashman should address whether any other conditions were 

causally related to employment factors. 

OWCP, on December 28, 2015, requested a supplemental opinion from Dr. Pashman. It 

provided him with the case record from File No. xxxxxx429 and an amended statement of 

accepted facts. 
5

Dr. Pashman, in a January 4, 2016 supplemental report, reviewed the medical records 

from File No. xxxxxx429. He opined that appellant had not sustained a cervical or upper 

extremity condition as a result of her work duties from March 2005 to March 2006. 

Dr. Pashman related, “There is no objective documentation that [appellant] had any specific 

work-related injury or aggravation causally related to her return to work,” noting that after 

shoulder surgery individuals could have “some somatic discomfort with abduction and overhead 

activities.” He further opined that appellant’s degenerative cervical spine condition and other 

conditions were unrelated to employment, but were instead “developmental and degenerative 

processes and not traumatically-induced or work-related in any way.” Dr. Pashman provided 

work restrictions due to her subjective complaints of discomfort with abduction and flexion. He 

related, “I do not feel that these work restrictions are specifically related to any federal 

employment activities or injuries.” Dr. Pashman found that appellant could perform sedentary or 

light employment with no difficulty. 

By decision dated March 15, 2016, OWCP denied appellant’s occupational disease claim. 

It determined that Dr. Pashman’s opinion represented the weight of the medical evidence and 

established that she had no cervical or upper extremity condition due to work activities from 

March 2005 to March 2006. 

Counsel, on March 21, 2016, requested an oral hearing. He subsequently requested a 

review of the written record in lieu of an oral hearing. Counsel argued that Dr. Pashman’s 

opinion was not rationalized. He indicated that the physician did not appear aware that 

appellant’s work duties required moving heavy boxes and focused on whether she sustained a 

traumatic work injury rather than an occupational disease. Counsel also asserted that 

Dr. Pashman did not address whether the work activities aggravated a cervical condition or the 

diagnosed syrinx. He noted that the physician found work restrictions.7

 

In a decision dated August 29, 2016, an OWCP hearing representative affirmed the 

March 15, 2016 decision. He found that Dr. Pashman’s opinion constituted the weight of the 

medical evidence as the impartial medical examiner. 

On appeal counsel contends that Dr. Pashman addressed whether appellant sustained a 

traumatic injury rather than a condition related to her work duties. He asserts that the physician 

did not discuss her job duties of lifting and moving boxes weight up to 52 pounds and repetitive 

upper extremity work. Counsel maintains that Dr. Pashman did not determine whether appellant 

sustained a condition due to her repetitive work duties and provided restrictions that would 

disable her from employment. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA8

 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an “employee of 

 7

 Counsel further maintained that OWCP could only request clarification from an impartial medical examiner one 

time before referring appellant for a new impartial medical examination; however, he subsequently noted that Board 

case law provided that more than one addendum could be requested if the physician was compliant responding. 

8 Supra note 2. 
6

the United States” within the meaning of FECA, that the claim was filed within the applicable 

time limitation; that an injury was sustained while in the performance of duty as alleged; and that 

any disability and/or specific condition for which compensation is claimed are causally related to 

the employment injury.9

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed;11 (2) a 

factual statement identifying employment factors alleged to have caused or contributed to the 

presence or occurrence of the disease or condition;12 and (3) medical evidence establishing the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant.13

Where 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.14

ANALYSIS 

On prior appeal, the Board determined that a conflict in medical opinion existed between 

Dr. Fried, appellant’s attending physician, and Dr. Stark, an OWCP referral physician, regarding 

whether appellant sustained a left upper extremity condition, an aggravation of a right upper 

extremity condition, or a cervical condition due to work factors occurring from March 2005, 

when she resumed work following right shoulder surgery under File No. xxxxxx429 until 

March 2006, when she stopped work. OWCP initially referred her to Dr. Rosenfeld and 

Dr. Hummer for impartial medical examinations. However, the reports from these physicians 

were insufficient to adequately resolve the relevant issues in the case.15 On November 19, 2014 

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

 9 Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989). 

10 See Ellen L. Noble, 55 ECAB 530 (2004). 

11 Michael R. Shaffer, 55 ECAB 386 (2004). 

12 Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001). 

13 Beverly A. Spencer, 55 ECAB 501 (2004). 

14 Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002). 

15 See J.M., Docket No. 10-0177 (issued October 1, 2010) (where OWCP secures an opinion from an impartial 

medical examiner for the purpose of resolving a conflict in the medical evidence and the opinion from such 

examiner requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the 

examiner for the purpose of correcting the defect in the original opinion; if the specialist is unwilling or unable to 

clarify or elaborate on his or her opinion as requested, the case should be referred to another appropriate impartial 

medical specialist). 
7

The Board finds that Dr. Pashman’s opinion is thorough and well rationalized and thus is 

entitled to special weight. As noted, when a case is referred to an impartial medical examiner for 

the purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized 

and based on a prior factual and medical background, must be given special weight.16

Dr. Pashman, in his December 18, 2014 report, discussed appellant’s history of a 

February 2005 right rotator cuff repair and noted that following her surgery she resumed work 

with lifting restrictions until her March 2006 work stoppage. He reviewed the medical evidence 

of record and, on physical examination, found no evidence of atrophy and reasonably strong grip 

strength. Dr. Pashman diagnosed a repetitive right shoulder strain and rotator cuff tear, status 

post right shoulder surgery, degenerative disc disease of the cervical spine with a C6-7 syrinx, 

multiple subjective upper extremity complaints, and possible bilateral median neuropathy. He 

concluded that appellant did not have a traumatic injury to her left shoulder or cervical spine due 

to employment factors. 

In a January 4, 2016 supplemental report, Dr. Pashman reviewed the medical evidence 

from File No. xxxxxx429. He found that appellant did not have any cervical or upper extremity 

condition resulting from work duties performed March 2005 to March 2006. Dr. Pashman 

provided rationale for his opinion by noting that there was no objective evidence supporting an 

injury or aggravation during this period. He further advised that appellant’s syrinx and 

degenerative cervical condition were unrelated to employment. Dr. Pashman provided work 

restrictions unrelated to federal work duties or injuries and opined that she could perform 

sedentary or light employment. As his report is detailed, well rationalized and based on a proper 

factual background, his opinion is entitled to the special weight accorded an impartial medical 

examiner.17

On appeal counsel argues that Dr. Pashman only addressed the issue of whether appellant 

sustained a traumatic injury rather than occupational disease. In his January 4, 2016 

supplemental report, however, the physician found that she did not sustain a cervical or upper 

extremity condition due to factors of her federal employment from March 2005 to March 2006. 

Counsel further asserts that Dr. Pashman was not aware that appellant’s job duties 

involved lifting and moving boxes weighing up to 52 pounds and repetitive upper extremity 

work. He contends that the physician’s restrictions would disable her from her position. At a 

November 28, 2005 hearing held under File No. xxxxxx429, however, appellant related that 

when she returned to work in March 2005 after her right rotator cuff surgery she performed 

sedentary work without lifting. 

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 and 

20 C.F.R. §§ 10.605 through 10.607. 

 16 See 5 U.S.C. § 8123(a); M.M., Docket No. 15-0979 (issued August 27, 2015). 

17 See R.S., Docket No. 15-1686 (issued November 25, 2015); Katheryn E. Demarsh, 56 ECAB 677 (2005). 
8

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish a left upper 

extremity condition, an aggravation of a right upper extremity condition, and/or a cervical 

condition causally related to factors of her federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the August 29, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 21, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board