United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 15-72 

Issued: April 10, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 14, 2014 appellant, through counsel, filed a timely appeal of a July 7, 2014 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider the merits of the case. 

ISSUE 

The issue is whether appellant has established that she sustained a recurrence of disability 

on or after April 1, 2009 due to her accepted employment injuries. 

On appeal, counsel argued that an OWCP hearing representative’s decision should be set 

aside on the grounds that it failed to acknowledge that appellant had established prima facie

evidence of her alleged recurrence of disability. He further argued that the statement of accepted 

facts (SOAF) and list of questions directed to the impartial medical examiner were misleading 

and prejudicial as OWCP stated that FECA was not a retirement program and that she was not 

 1

 5 U.S.C. § 8101 et seq.
2

entitled to compensation for wage-loss benefits unless she was totally disabled. Counsel argues 

that the impartial medical examiner did not address the central issue and his report does not 

resolve the existing conflict of medical opinion evidence. 

FACTUAL HISTORY 

This case has previously been before the Board on appeal. On December 2, 2008 

appellant, then a 43-year-old window and distribution clerk filed an occupational disease 

alleging that she developed carpal tunnel syndrome and ulnar neuritis in her right arm. She 

stated that her symptoms were beginning in her left arm. Appellant attributed her condition to 

repetitious actions at the employing establishment. OWCP accepted her claim for cubital tunnel 

syndrome, carpal tunnel syndrome, and wrist sprain all on the right on January 27, 2009. 

Appellant began working three days a week on November 19, 2008 with no lifting over 

10 pounds, and no pushing or pulling. She began working as the main window clerk with 

assistance for heavy parcels and coworkers would move the wheeled containers that she could 

not pull or push. 

Appellant filed a notice of recurrence on May 4, 2009 alleging that on April 1, 2009 she 

stopped work based on the recommendations of her attending physician, Dr. Scott Fried, an 

osteopath. 

OWCP denied appellant’s claimed recurrence on November 17, 2009. Appellant 

requested an oral hearing. By decision dated July 26, 2010, OWCP’s Branch of Hearings and 

Review found an unresolved conflict of medical opinion evidence between Dr. Fried and 

Dr. Kevin Hanley, an orthopedic surgeon and second opinion referral physician, regarding 

whether she had established a change in the nature and extent of her injury-related conditions 

such that she could no longer perform the duties of her light-duty position, and remanded for 

additional development. OWCP referred appellant for an impartial medical examination with 

Dr. George Glenn, a Board-certified orthopedic surgeon, on September 27, 2010. Dr. Glenn 

found on November 16, 2010 that she was capable of performing modified-duty work eight 

hours a day. He provided lifting restrictions of 20 pounds occasionally and 10 pounds 

frequently. Dr. Glenn also stated that appellant should not lift overhead. 

By decision dated December 28, 2010, OWCP denied appellant’s claim for compensation 

for the period June 6, 2009 to August 13, 2010. Counsel requested an oral hearing on 

January 4, 2011. In a decision dated July 6, 2011, OWCP’s hearing representative determined 

that Dr. Glenn was not properly designated an impartial medical examiner, but that his report 

was sufficient to create a conflict with the reports of Dr. Fried and required referral to an 

impartial medical examiner. She remanded the case for additional development of the medical 

evidence. 

On July 21, 2011 OWCP referred appellant to Dr. Roy Friedenthal, a Board-certified 

orthopedic surgeon and impartial medical examiner, who reported on September 14, 2011 that 

there was no objective evidence of right cubital tunnel syndrome or carpal tunnel syndrome, and 

also no objective evidence of right wrist sprain. Dr. Friedenthal further reported that she was not 

totally disabled and that she was capable of working with restrictions. 
3

In an October 26, 2011 decision, OWCP denied appellant’s claim for recurrence of 

disability on April 1, 2009 finding that Dr. Friedenthal’s report established that she was currently 

capable of working full time with restrictions. 

Appellant requested a video hearing of her claim which was held on February 29, 2012. 

By decision dated May 18, 2012, the hearing representative affirmed OWCP’s October 26, 2011 

decision. Appellant appealed this decision to the Board and by decision dated April 19, 2013,2

the Board found that Dr. Friedenthal’s report was not sufficiently detailed and well reasoned to 

resolve the existing conflict of medical opinion evidence. The Board remanded the case, finding 

that OWCP must undertake additional development of the medical evidence to resolve the 

existing conflict of medical opinion evidence by providing Dr. Friedenthal with a complete 

SOAF and requesting a supplemental report addressing the central issue of her alleged 

recurrence of disability in April 2009. The facts and circumstances of the case as set forth in the 

Board’s prior decision are adopted herein by reference. 

On July 17, 2013 OWCP referred appellant for evaluation with Dr. Friedenthal. It 

requested that he provide a supplemental report and provided him with a list of specific 

questions, an amended SOAF, and authorized diagnostic testing. The SOAF noted that 

appellant’s full-duty position included standing, using a computer, and lifting up to 70 pounds. 

Appellant’s light-duty physical requirements included working three days a week, with no lifting 

over 10 pounds and no pushing or pulling. OWCP noted that FECA was not a retirement 

program. Dr. Friedenthal referred appellant for neurologic evaluation including 

electromyograms and nerve conduction velocity testing on both upper extremities on 

September 12, 2013. 

On September 30, 2013 Dr. Fried opined that appellant could not return to her regular 

work duties. He recommended additional neurological testing and a functional capacity 

evaluation. 

Appellant’s neurological testing on October 7, 2013 demonstrated evidence of mild 

carpal tunnel syndrome on the left. 

In a supplemental report dated November 5, 2013, Dr. Friedenthal stated that he 

reexamined appellant on August 6, 2013. Appellant reported at that time that once or twice a 

week, one or both of her arms went numb. On physical examination Dr. Friedenthal found that 

she had decreased range of motion of the right shoulder and mild crepitus in both shoulders. He 

found intact rotator cuff strength. Appellant demonstrated normal range of motion in her elbow 

and wrists with no intrinsic muscle atrophy in the hands. She reported tingling in the ulnar two 

digits of the left hand with no sensory loss or alteration in the median nerve distribution. Motor 

muscle testing was characterized by give-way weakness with no consistent deficit. Appellant’s 

right upper arm measured 1⁄2 inch less than her left. She demonstrated a positive Tinel’s sign 

over the radial sensory nerve and over the cubital tunnel on the left. Phalen’s test resulted in 

paresthesias in the ulnar digits bilaterally. Dr. Friedenthal reviewed the amended SOAF and 

listed the duties of appellant’s date-of-injury and light-duty positions. He diagnosed 

electrophysiologic evidence of minimal left carpal tunnel syndrome, overuse injury by history, 

 2

 Docket No. 12-1758 (issued April 19, 2013). 
4

degenerative disc disease, cervical spine, status post transient ulnar neuropathy, right elbow, and 

rule-out rotator cuff tendinosis both shoulders greater right than left. Dr. Friedenthal stated that 

there was no objective clinical evidence of right cubital tunnel syndrome, right carpal tunnel 

syndrome, or right wrist sprain. He stated that appellant demonstrated mild left carpal tunnel 

syndrome on electrodiagnostic testing. Dr. Friedenthal opined that her clinical presentation was 

inconsistent with that diagnosis. He stated that he did not find confirmatory evidence of left 

carpal tunnel syndrome. Dr. Friedenthal noted that appellant stopped work on April 1, 2009 and 

reviewed the medical history noting that there were no new diagnoses at that time and that there 

were no new findings. He stated that she currently could return to full-time work with 

restrictions. Dr. Friedenthal indicated that appellant should avoid continuous repetitive work, 

but could lift up to 20 pounds. He recommended that she have the ability to stand or sit freely 

through the day. Dr. Friedenthal opined that appellant did not require further treatment for the 

accepted conditions. He stated, “The inconsistent and paradoxical findings reflect 

nonphysiologic factors active in this individual and those reflect issues that would not be 

addressed by physical treatment.” Dr. Friedenthal concluded that appellant’s conditions of right 

carpal tunnel syndrome, right cubital tunnel syndrome, and right wrist sprain were no longer 

active. 

Dr. Friedenthal completed a work capacity evaluation and indicated that appellant could 

not return to her date-of-injury position, but could work eight hours a day with restrictions. He 

indicated that she should not reach above the shoulder due to her nonemployment-related 

shoulder condition. Dr. Friedenthal limited appellant to pushing, pulling, and lifting 10 to 20 

pounds occasionally and 10 pounds frequently. He also recommended morning and afternoon 

breaks of 15-minute and a lunch break of 30 minutes. 

By decision dated November 20, 2013, OWCP denied appellant’s claim for recurrence of 

disability on or after April 1, 2009 based on Dr. Friedenthal’s reports. 

Appellant’s counsel requested an oral hearing before an OWCP hearing representative on 

November 25, 2013. In a report dated January 27, 2014, Dr. Fried stated that appellant’s upper 

extremity conditions were stable as long as she was careful. He stated that she could not return 

to regular work activities. Dr. Fried diagnosed ligament injury of the right wrist, scapholunate 

ligament tear right wrist, radial neuropathy right and median neuropathy on the left, carpal tunnel 

median neuropathy, and overuse syndrome on the left, as well as ulnar neuropathy bilaterally. 

Counsel appeared at the oral hearing on April 22, 2014 and argued that the SOAF as 

amended did not include a complete picture of appellant’s light-duty job requirements. In a 

report dated May 19, 2014, Dr. Fried repeated his previous findings and conclusions. 

By decision dated July 7, 2014, the hearing representative affirmed OWCP’s 

November 20, 2013 decision finding that there was no rationalized medical opinion supporting 

appellant’s claim for disability on or after April 1, 2009 due to her accepted work injury. She 

found that Dr. Friedenthal based his report on a proper factual background, reviewed diagnostic 

testing, and determined that appellant was capable of working full time with restrictions. 
5

LEGAL PRECEDENT 

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which had resulted from a 

previous injury or illness without an intervening injury or new exposure to the work environment 

that caused the illness. This term also means an inability to work that takes place when a 

light-duty assignment made specifically to accommodate an employee’s physical limitations due 

to his or her work-related injury or illness is withdrawn or when the physical requirements of 

such an assignment are altered so that they exceed his or her established physical limitations.3

 

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 

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.4

 

In situations where there are 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 on a proper 

factual background, must be given special weight.5

ANALYSIS 

The Board previously found that there was a conflict of medical opinion evidence 

regarding whether appellant had established a change in the nature and extent of her 

injury-related conditions such that she could no longer perform the duties of her light-duty 

position. On remand from the Board, OWCP amended the SOAF and requested a supplemental 

report from Dr. Friedenthal, the impartial medical examiner, as directed. Appellant’s accepted 

conditions were right cubital tunnel syndrome, right carpal tunnel syndrome, and right wrist 

sprain. 

In his November 5, 2013, report, Dr. Friedenthal reported findings in appellant’s left 

wrist and hand. He noted that motor muscle testing was characterized by give-way weakness 

with no consistent deficit. Appellant demonstrated a positive Tinel’s sign over the radial sensory 

nerve and over the cubital tunnel on the left. Phalen’s test resulted in paresthesias in the ulnar 

digits bilaterally. Dr. Friedenthal reviewed the amended SOAF and listed the duties of 

appellant’s date-of-injury and light-duty positions. He stated that there was no objective clinical 

evidence of right cubital tunnel syndrome, right carpal tunnel syndrome, or right wrist sprain. 

Dr. Friedenthal stated that appellant demonstrated mild left carpal tunnel syndrome on 

electrodiagnostic testing. He opined that her clinical presentation was inconsistent with that 

 3

 20 C.F.R. § 10.5(x). 

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

5 Nathan L. Harrell, 41 ECAB 401, 407 (1990). 
6

diagnosis. Dr. Friedenthal stated that appellant could return to full-time work with restrictions of 

avoiding continuous repetitive work, but lifting up to 20 pounds. He opined that she did not 

require further treatment for the accepted conditions. Dr. Friedenthal noted that the medical 

history provided consistent findings and diagnoses before and after April 1, 2009. He found 

“inconsistent and paradoxical findings reflect nonphysiologic factors active in this individual and 

those reflect issues that would not be addressed by physical treatment.” Dr. Friedenthal 

concluded that appellant’s conditions of right carpal tunnel syndrome, right cubital tunnel 

syndrome, and right wrist sprain were no longer active. 

Dr. Friedenthal completed a work capacity evaluation and indicated that appellant could 

not return to her date-of-injury position, but could work eight hours a day with restrictions. He 

indicated that she should not reach above the shoulder due to her nonemployment-related 

shoulder condition. Dr. Friedenthal limited appellant to pushing, pulling, and lifting 10 to 20 

pounds occasionally and 10 pounds frequently. He also recommended morning and afternoon 

breaks of 15 minutes and a lunch break of 30 minutes. 

Contrary to the arguments of counsel on appeal, the Board finds that Dr. Friedenthal’s 

detailed and well-reasoned November 5, 2013 supplemental report entitled to the special weight 

of the medical opinion evidence afforded an impartial medical examiner. Dr. Friedenthal’s 

report does not support appellant’s claim for a recurrence of total disability as the result of a 

change in the nature and extent of her accepted employment injuries beginning April 1, 2009. 

He based his report upon the amended SOAF, which the Board finds do contain the necessary 

physical duties of her date-of-injury and light-duty positions needed for him to assess her ability 

to work. The Board does not find that the SOAF and list of questions provided to 

Dr. Friedenthal were misleading, lacking in specificity, or prejudicial. OWCP’s inclusion of the 

statement that FECA is not a retirement program is factually valid,6

 and although fully 

unnecessary, does not adversely impact appellant’s case in anyway. The Board further finds 

that, based on the findings and conclusions above, counsel’s argument regarding the hearing 

representative’s weighing of the medical evidence lacks merit. 

In his supplemental report, Dr. Friedenthal provided detailed physical findings, reviewed 

the medical history as well as additional diagnostic testing, and found that appellant’s 

employment-related conditions had not worsened on or after April 1, 2009 and were currently 

resolved. He provided work restrictions which were in keeping with her light-duty job 

requirements and opined that she could work for eight hours a day. Based on this report, the 

Board finds that appellant has not met her burden of proof in establishing a recurrence of 

disability on April 1, 2009. 

Appellant submitted additional reports from Dr. Fried, in which he continued to opine 

that appellant’s right upper extremity conditions were active and that she could not return to 

work. These reports do not contain a clear diagnosis of the accepted conditions, do not include 

medical testing, and do not provide the necessary medical opinion evidence to meet here burden 

of proof. Furthermore, as Dr. Fried was on one side of the conflict that Dr. Friedenthal resolved, 

 6 See 5 U.S.C. § 8102(a). 
7

the additional reports from Dr. Fried are insufficient to overcome the weight accorded 

Dr. Friedenthal’s report as the impartial medical specialist or to create a new conflict with it.7

 

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 appellant has not met her burden of proof to establish that she 

sustained a recurrence of total disability on or after April 1, 2009 due to her accepted 

employment injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the July 7, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: April 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 7 Dorothy Sidwell, 41 ECAB 857, 874 (1990).