United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

DEPARTMENT OF THE INTERIOR, BUREAU 

OF LAND MANAGEMENT, Santa Fe, NM, 

Employer 

__________________________________________ 

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Docket No. 16-1262 

Issued: January 11, 2017 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, 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 May 31, 2016 appellant, through counsel, filed a timely appeal from a December 3, 

2015 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 to consider the merits of the 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 has met her burden of proof to establish total disability 

from July 10, 2006 through September 26, 2013. 

On appeal counsel argues that OWCP should have further developed the medical 

evidence or that it should have accepted appellant’s claimed periods of disability beginning 

July 10, 2006 based on the second opinion report. He alleges that the medical evidence of record 

established that appellant could work no more than one hour a day as a result of material 

worsening of her accepted conditions. 

FACTUAL HISTORY 

On February 7, 2006 appellant, a 41-year-old fire program assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on January 25, 2006 when she slipped on ice her body 

struck her car. She alleged that she sustained a lower back injury. OWCP accepted appellant’s 

claim for sprain/strain of the lumbar region on May 24, 2006. 

Appellant underwent electrodiagnostic studies on June 1, 2006. These tests of the right 

extremity were normal with no evidence of entrapment neuropathy, radiculopathy, peripheral 

neuropathy, or myopathy. 

In a July 5, 2006 note, appellant’s attending physician, Dr. Evan Nelson, a family 

practitioner, provided results on examination and opined that she could return to light-duty work 

on July 10, 2006 working eight hours a day with restrictions. He reported that appellant believed 

that she could return to work part time with minimal lifting. Dr. Nelson provided work 

restrictions of limited lifting and bending. He indicated that appellant could tentatively return to 

full duty on July 17, 2006. Dr. Nelson further indicated that she had subjective complaints of 

continued pain and numbness to her lower extremities, despite having negative electrodiagnostic 

studies and minimal changes on x-rays. 

Dr. Nelson completed a note on July 13, 2006 finding that appellant could return to at 

least part-time work. In a form report dated July 14, 2006, he reiterated that she could return to 

light duty on July 5, 2006, but could resume regular duties on July 17, 2006. 

Appellant resigned from the employing establishment, effective August 4, 2006. 

On January 23, 2007 Dr. Barrie W. Ross, a physician specializing in pain management, 

provided results on examination and diagnosed cervical strain and lumbar strain. She 

recommended that appellant return to light-duty work lifting no more than 20 pounds with no 

frequent or repetitive bending and twisting. In a note dated April 17, 2007, however, Dr. Ross 

indicated that appellant could return to work with no restrictions. 

Appellant underwent a cervical magnetic resonance imaging (MRI) scan on June 23, 

2007 which demonstrated mild degenerative changes worse at C3-4 with mild anterolisthesis and 

uncovertebral joint hypertrophy resulting in mild bilateral neural foraminal narrowing. 
3

On February 21, 2012 OWCP advised appellant’s prior counsel that, as there had been no 

evidence of continuing medical care, it administratively closed the file. It noted the last 

treatment had been September 24, 2010. 

Appellant received a third-party settlement and refunded the appropriate sums of money 

to OWCP. 

Counsel requested, by letter dated July 31, 2012, justification for termination of 

appellant’s medical benefits without notice. 

Appellant submitted a series of reports from Dr. Peter Tiernan, a physician specializing in 

preventative medicine reflecting continuous medical treatment. Dr. Tiernan provided results on 

examination on September 24, 2010 and diagnosed depression and back pain, and on August 9 

and December 21, 2011 and April 27, 2012 he diagnosed chronic pain. 

To determine whether there was need for continuing medical treatment due to the 

accepted condition of lumbar strain/sprain, OWCP referred appellant for a second opinion 

examination with Dr. James H. Lubowitz, a Board-certified orthopedic surgeon, on 

December 10, 2012. In his report dated January 15, 2013, Dr. Lubowitz found that appellant’s 

paralumbar pain was causally related to her employment injury, but found evidence of nonworkrelated conditions, such as chronic pain and symptom magnification. He found that she was 

capable of working eight hours a day with restrictions. 

On May 8, 2013 OWCP proposed to terminate appellant’s medical benefits and wageloss compensation based on Dr. Lubowitz’ report. It allowed appellant 30 days to respond. 

Dr. Tiernan provided results on examination on April 17, May 21, July 10, September 20, 

and November 14, 2013 and diagnosed dislocation of cervical vertebra, lumbar sprain, and 

chronic pain syndrome. 

On September 26, 2013 appellant filed a claim for compensation (Form CA-7) and 

requested compensation for leave without pay from July 10, 2006 through September 26, 2013. 

By letter dated October 28, 2013, in response to the claims for wage-loss compensation, 

OWCP noted that it had issued a notice of proposed termination and provided appellant 30 days 

to submit additional evidence or argument. Therefore it stated that it was deferring the claim for 

total wage-loss compensation for the period July 10, 2006 to September 16, 2013. 

Dr. Tiernan provided additional results on examination on January 10 and 15, March 7 

and 19, and May 14, 2014 due to lumbar sprain and closed dislocation of cervical vertebra. 

By decision dated April 11, 2014, OWCP denied appellant’s claim for compensation for 

the period July 10, 2006 through September 26, 2013. It acknowledged that she had chronic 

pain, but found that neither the treating p[hysician nor the second opinion physician supported an 

aggravation or worsening of the accepted condition Counsel requested an oral hearing on 

April 15, 2014 from OWCP’s Branch of Hearings and Review. In a decision dated 

September 29, 2014, OWCP’s hearing representative set aside OWCP’s April 11, 2014 decision 

and remanded the claim for further development of the evidence. OWCP explained that the 
4

October 28, 2013 letter was not a proper development letter in response to the September 26, 

2013 claims for compensation. 

OWCP perfected the development letter on October 2, 2014 and requested additional 

factual and medical evidence in support of appellant’s claimed period of disability. It allowed 

appellant 30 days for a response. 

Dr. Tiernan completed a narrative report on October 27, 2014 and described appellant’s 

history of injury. He opined that appellant continued to experience lumbar sprain, neck pain, and 

headaches due to her accepted employment injury. 

To determine the extent of appellant’s current medical condition and whether appellant 

was disabled due to a work-related condition, OWCP referred appellant for a second opinion 

evaluation with Dr. Keith E. Harvie, an osteopath, on November 5, 2014. 

By decision dated January 28, 2015, OWCP issued a new denial of appellant’s 

September 26, 2013 claim for compensation for the period July 10, 2006 through September 26, 

2013 as she had failed to submit the necessary medical opinion evidence. It noted that, although 

the second opinion report had not yet been received, Dr. Lubowitz was the weight of the medical 

evidence of record 

In a report dated January 6, 2015, Dr. Harvie described appellant’s January 25, 2006 

employment-related fall. Appellant reported continued neck pain through her shoulders and 

arms, pain down her back to her buttocks, and as well as right and left thoracic pain. Dr. Harvie 

reviewed appellant’s medical record and performed a physical examination. He opined that she 

had severe depression causally related to her employment injury as well as degenerative disc 

disease, chronic pain, deconditioning, and flexion and extension injury of the cervical spine all 

causally related to her employment injury. Dr. Harvie determined that the conditions of severe 

depression and degenerative disc disease gradually worsened. He noted that appellant’s chronic 

pain had not changed, that her injury of the cervical spine had not changed and that she 

developed deconditioning due to her injury. Dr. Harvie opined that for the entire period from 

July 10, 2006 through September 26, 2013 the work-related conditions rendered her only 

partially disabled. He also noted that appellant had developed chronic pain and depression. Dr. 

Harvie found that she was not totally disabled nor did she have any residuals of her employmentrelated conditions. Nonetheless, he found that appellant’s chronic pain was secondary to her fall 

of January 25, 2016. 

Dr. Harvie completed a work restriction evaluation and noted that appellant could work 

for 30 minutes to 1 hour a day. He opined that she had reached maximum medical improvement 

and provided specific work restrictions including sitting for 30 minutes, walking for 30 minutes, 

standing for 10 minutes and reaching for 5 minutes. Dr. Harvie indicated that appellant could 

push, pull, and lift five pounds for approximately eight minutes each. 

OWCP requested a supplemental report from Dr. Harvie on February 5, 2015. It asked 

that he provide specifics regarding appellant’s additional employment-related conditions 

including aggravation of degenerative disc disease and chronic pain. OWCP also asked that 

Dr. Harvie clarify appellant’s work restrictions. 
5

On February 10, 2015 counsel requested reconsideration of the earlier January 28, 2015 

decision denying appellant’s claims for compensation. Dr. Tiernan completed notes on 

September 12, 23, and October 22, 2014 and diagnosed chronic pain syndrome and lumbago. 

In a decision dated May 4, 2015, OWCP denied modification of the January 28, 2015 

decision. 

Dr. Harvie completed a supplemental report on June 15, 2015. He opined that appellant 

had sustained an aggravation of her degenerative disc disease in the lower lumbar spine. 

Dr. Harvie did not explain or modify his work restrictions or further explain appellant’s 

diagnosis of chronic pain. 

In a letter dated July 20, 2014, counsel requested that OWCP expand appellant’s claim to 

include the additional conditions of severe depression, degenerative disc disease, chronic pain, 

and deconditioning based on Dr. Harvie’s reports. 

OWCP accepted additional conditions of severe depression, aggravation of degeneration 

of lumbar or lumbosacral intervertebral disc, aggravation of chronic pain syndrome and muscular 

wasting and disuse atrophy on September 4, 2015. 

On September 11, 2015 counsel again requested reconsideration of the January 28, 2015 

decision denying wage-loss compensation. He submitted an October 27, 2015 report from 

Dr. Tiernan diagnosing chronic pain syndrome and lumbago. 

By decision dated December 3, 2015, OWCP denied modification of the January 28, 

2015 decision denying appellant’s claim for total disability for the period July 10, 2006 through 

September 26, 2013. Appellant found that, even though the additional conditions had been 

accepted, she voluntarily left the position that had been available to her within her restrictions. 

Thus, she was found not to be entitled to wage-loss compensation. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden to establish 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.3

 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.4

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence of 

record establish that he or she can perform the light-duty position, the employee has the burden 

to establish by the weight of the reliable, probative and substantial evidence a recurrence of total 

 3 G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 

4

 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). 
6

disability and show that he or she cannot perform such light duty. As part of this burden, the 

employee must show a change in the nature and extent of the injury-related condition or a change 

in the nature and extent of the light-duty requirements.5

 

Whether a particular injury causes an employee to be disabled from 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.6

 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled for work. When a 

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints that he or she hurts too much to work, without objective findings of 

disability being shown, the physician has not presented a medical opinion on the issue of 

disability or a basis for payment of compensation.7 The Board will not require OWCP to pay 

compensation for disability in the absence of any medical evidence directly addressing the 

specific dates of disability for which compensation is claimed. To do so would essentially allow 

employees to self-certify their disability and entitlement to compensation.8

 

Causal relationship is a medical issue and the medical evidence required to establish 

causal relationship is rationalized medical evidence.9

 Rationalized medical evidence is medical 

evidence which includes a physician’s detailed medical opinion on the issue of whether there is a 

causal relationship between the claimant’s diagnosed condition and the implicated employment 

factors. 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.10 Neither the fact that a disease 

or condition manifests itself during a period of employment nor the belief that the disease or 

condition was caused or aggravated by employment factors or incidents is sufficient to establish 

causal relationship.11

ANALYSIS 

The Board finds that the case is not in posture for a decision. 

The medical evidence, dating back to Dr. Nelson’s 2006 report, has supported that 

appellant could work in some light-duty capacity for eight hours a day. Appellant chose to 

resign from the employing establishment on August 4, 2006. In 2007 Dr. Ross also found that 

 5 Terry R. Hedman, 38 ECAB 222 (1986). 

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

7 Id.

8 Id. 

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

10 Leslie C. Moore, 52 ECAB 132 (2000). 

11 Dennis M. Mascarenas, 49 ECAB 215 (1997). 
7

appellant could work eight hours a day with restrictions. Dr. Lubowitz, a second opinion 

physician, completed a report on January 15, 2013, finding that appellant had continued residuals 

of her accepted conditions, but that she was capable of working eight hours a day with 

restrictions. 

Appellant requested wage-loss compensation for leave without pay from July 10, 2006 

through September 26, 2013. OWCP referred her for a second opinion evaluation with 

Dr. Harvie. Based on this report, it accepted that appellant sustained additional employmentrelated conditions including severe depression, aggravation of degeneration of lumbar or 

lumbosacral intervertebral disc, aggravation of chronic pain syndrome and muscular wasting and 

disuse atrophy. Dr. Harvie also opined that she was partially disabled beginning July 10, 2006 

due to her employment-related conditions. He found that appellant’s conditions of severe 

depression and degenerative disc disease had gradually worsened following her accepted 

employment injury. Dr. Harvie also noted that her chronic pain and cervical spine conditions 

had not changed, but she developed deconditioning due to her work-related injury. He opined 

that the work-related conditions rendered appellant partially disabled for the entire period 

July 10, 2006 through September 26, 2013, as she developed chronic pain and depression. 

Dr. Harvie found that appellant was not totally disabled as she could currently work one hour a 

day. 

OWCP requested a supplemental report from Dr. Harvie to address appellant’s work 

restrictions and her additional diagnosed conditions in accordance with its established 

procedures.12 Dr. Harvie responded on June 15, 2015 and opined that appellant sustained an 

aggravation of her degenerative disc disease in the lower lumbar spine. He did not explain his 

work restrictions. OWCP’s procedures require OWCP to seek clarification from the referral 

physician and request a supplemental report to clarify specifically-noted discrepancies or 

inadequacies in the initial second opinion report. If the second opinion physician does not 

respond or does not provide a sufficient response, then the claims examiner should request a 

report from another second opinion physician. 

The Board finds that Dr. Harvie did not respond to OWCP’s request for clarification of 

his report regarding appellant’s disability from work. He did not explain when and how 

appellant’s work restrictions evolved from eight hours a day with restrictions to one hour a day 

with restrictions. The Board notes that the most recent medical evidence in the record addressing 

disability prior to Dr. Harvie’s reports was the December 10, 2012 report from Dr. Lubowitz, 

who found that appellant could work eight hours a day with restrictions. There is no bridging 

evidence in the record addressing the drastic change in appellant’s ability to work from 

December 10, 2012 to January 6, 2015. Dr. Harvie did not explain the basis for his 

determination or explain why and how he believed appellant’s condition had changed so 

drastically. Proceedings before OWCP are not adversarial in nature and it is not a disinterested 

arbiter. In a case where OWCP “proceeds to develop the evidence and to procure medical 

evidence, it must do so in a fair and impartial manner.”13 It has an obligation to see that justice is 

 12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.9(j) (June 2015). 

13 Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985). 
8

done.14 As Dr. Harvie did not fully explain his opinion regarding appellant’s work restrictions, 

OWCP must seek further medical opinion regarding the extent of her disability from work, when 

this disability began, and her ongoing work restrictions. After this and such other develop as 

OWCP deems necessary, it should issue a de novo decision. 

CONCLUSION 

The Board finds that the case is not in posture for decision as it requires further 

development of the medical evidence regarding the timing and extent of appellant’s work-related 

disability. 

ORDER 

IT IS HEREBY ORDERED THAT that December 3, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further development consistent 

with this decision of the Board. 

Issued: January 11, 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 

 14 John J. Carlone, 41 ECAB 354, 358-60 (1989).