United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.G., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 17-0608

Issued: March 19, 2018

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 18, 2017 appellant, through counsel, filed a timely appeal from a January 9, 

2017 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

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 6, 2016 because the accepted conditions 

had resolved with no residuals; (2) whether appellant has established continuing employmentrelated disability after March 6, 2016 due to the accepted conditions; and (3) whether appellant 

met her burden of proof to establish additional cervical and emotional conditions causally related 

to the September 14, 2005 employment injury.

On appeal counsel asserts that because additional conditions should have been accepted as 

caused by the September 14, 2005 employment injury the statements of accepted facts (SOAF) 

provided OWCP referral physicians and directed examiners were fatally flawed.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances outlined in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On September 14, 2005 appellant, then a 36-year-old full-time customer service 

representative, injured her right wrist, lower back, and left knee when she slipped and fell on a wet 

floor that day while in the performance of duty. OWCP accepted her traumatic injury claim (Form 

CA-1) for brachial neuritis/radiculitis and unspecified thoracic/lumbar neuritis/radiculitis. 

Appellant stopped work on the date of injury. OWCP paid her compensation on the periodic 

compensation rolls beginning on September 29, 2006.

Dr. Leonard A. Bruno, a Board-certified neurosurgeon, began treating appellant in 

December 2005. He diagnosed cervical sprain and herniated disc at C6-7, C7 radiculitis, sciatica, 

questionable nerve bruising, and lumbar sprain due to the September 2005 fall. Dr. Bruno

continued to submit reports describing appellant’s treatment. He referred appellant to

Dr. Gregory W. Cooper, a Board-certified neurologist, who opined that appellant’s neck pain and 

left arm paresthesias were the result of the September 14, 2005 work injury. Dr. Simon Galapo, 

Board-certified in anesthesia and pain medicine, began pain management in November 2006.4

In September 2006, OWCP referred appellant to Dr. Richard J. Mandel, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a November 2, 2006 report, Dr. Mandel

concluded that she could work part-time modified duty. In September 2007, OWCP referred 

appellant to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, for a second opinion

evaluation. On October 12, 2007 Dr. Hanley diagnosed aggravated cervical disc disease with 

whiplash syndrome, mild lumbar discomfort, tinnitus, and vertigo of the left side. He opined that 

the September 14, 2005 employment injury permanently aggravated a degenerative process in the 

neck, manifested by significant pain, limitation of motion, and unresponsiveness to normal 

 

3 Docket No. 16-0075 (issued September 25, 2017).

4 An October 9, 2006 electrodiagnostic study of the upper extremities was mildly abnormal, consistent with mild 

nerve root irritation to either the C5-6 nerve root or to the upper brachial plexus trunk on the left. 
3

treatment. Dr. Hanley advised that appellant could work eight hours a day with permanent 

restrictions.

Appellant continued seeing Drs. Bruno and Galapo. On August 14, 2008 Dr. Bruno 

advised that appellant could work a four-hour day of limited duty. On August 29, 2008 appellant 

accepted a modified customer service representative position for four hours daily. 

OWCP next referred appellant to Dr. Raoul Biniaurishvili, a Board-certified neurologist. 

On September 3, 2008 Dr. Biniaurishvili diagnosed mild degenerative cervical spine disease, 

myofascitis of the cervical paraspinal musculature, and tension headaches. He advised that 

appellant could continue working as a customer service representative and could gradually 

increase her work hours.

By decision dated October 28, 2008, OWCP determined that appellant’s actual earnings in 

the part-time modified customer service representative position fairly and reasonably represented 

her wage-earning capacity and reduced her compensation accordingly.

Appellant received a third-party settlement regarding the September 14, 2005 employment 

injury. She continued treatment with Dr. Bruno and Dr. Galapo.

In November 4 and 7, 2014 reports, Dr. Bruno noted appellant’s complaint of neck pain 

radiating into her head with severe headaches, bilateral arm pain, and increasing vertigo. He 

diagnosed worsening C5-6 and C6-7 herniated disc, recommended surgery, and advised that 

appellant could not work from November 4, 2014 to March 1, 2015 due to the herniated discs from 

C5 to C7.

Appellant stopped work on November 4, 2014 and filed claims for compensation (CA-7 

forms) beginning that day. Dr. Bruno continued to advise that appellant could not work. 

Dr. Stephen J. Dante, a Board-certified neurosurgeon, examined appellant on 

February 10, 2015. He reviewed imaging studies and diagnosed cervical spondylosis with 

radiculopathy. Dr. Dante concluded that a treatment option would be cervical decompression and 

fusion surgery.

In February 2015, OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. Dr. Smith was specifically asked to identify 

all diagnosed conditions and explain whether they were caused by the September 14, 2005 

employment injury. A SOAF addendum dated February 19, 2015 indicated that cervical sprain 

had also been accepted.

In a February 27, 2015 report, Dr. Smith opined that there were no objective examination 

findings to support appellant’s complaints and nothing to suggest an ongoing soft tissue sprain of 

the neck or any active neuritis/radiculitis in the extremities, and that, based on multiple magnetic 

resonance imaging (MRI) scans, she had preexisting degenerative disease of both her neck and 

back. He advised that she could return to work with regard to the accepted conditions. In 

April 2015, OWCP specifically asked Dr. Smith to comment on whether a cervical herniated disc 

was due to the September 14, 2005 work injury and whether cervical spine surgery was needed. 

On April 8, 2015 Dr. Smith advised that, as the findings of the October 9, 2006 electrodiagnostic 
4

study were mild and more than eight years old,

5

there was no indication for surgery without 

updated studies showing a progressive neurological deficit.

In reports dated March 26 to April 3, 2015, Dr. James S. Harrop, a Board-certified 

neurosurgeon, noted seeing appellant for a long history of chronic neck and arm pain. He described 

physical examination and MRI scan findings. Dr. Harrop diagnosed cervical myelopathy and 

recommended anterior cervical fusion at C5-6 and C6-7. He requested surgical authorization. 

On April 30, 2015 OWCP determined that a conflict in medical opinion evidence had been 

created between Dr. Bruno and Dr. Smith regarding whether appellant had continuing residuals of 

the September 14, 2005 employment injury. Accordingly, it referred appellant to Dr. William H. 

Simon, a Board-certified orthopedic surgeon, for an impartial medical evaluation. OWCP 

provided Dr. Simon with a SOAF that identified the accepted conditions. In a set of questions,

Dr. Simon was asked, inter alia, to describe any diagnoses due to the employment injury and 

whether appellant continued to suffer residuals of the accepted conditions. OWCP also asked him

to determine whether the recommended cervical spine surgery was medically necessary. 

In a June 7, 2015 report, Dr. Simon noted his review of the SOAF and medical record. He 

described appellant’s complaints of radiating neck and low back pain, migraine headaches, 

dizziness, and upper extremity tingling and numbness. Examination findings included limited 

cervical and left shoulder range of motion, bilateral negative straight-leg raising, and tenderness 

to palpation of the trapezius muscles. Dr. Simon discussed the September 4, 2014 MRI scan which 

was initially read as showing increased herniation at C5-6 and C6-7. He reviewed this MRI scan 

and interpreted it as showing a large osteophyte in the foramen on the right side at C5-6. Dr. Simon

noted that no other physician, except the physician who initially read this MRI scan, had diagnosed 

disc herniations at these levels. He diagnosed degenerative disc disease of the cervical spine, 

particularly at C5-6, with mild degenerative changes at C4-5 and C6-7, which had worsened with 

the passage of time and were not related to the September 14, 2005 work injury.6 Dr. Simon

indicated that the requested surgery, which was scheduled for June 8, 2015, was not necessary to 

treat an employment-related condition. Rather, it was necessary for appellant’s underlying 

degenerative disc disease. He concluded that the accepted conditions had resolved. 

In a May 14, 2015 report, Dr. Bruno noted treating appellant since 2005 for neck and arm 

pain from a cervical disc herniation that also caused cervical vertigo and migraine headaches, and

that, as of November 4, 2014, appellant’s disc herniations were worsening. He opined that, within 

 

5 Supra note 3.

6 Appellant had several cervical spine MRI scans. An October 13, 2005 scan showed mild bulges and spurring at 

C4-5, C5-6, and C6-7 with possible foraminal encroachment. A September 26, 2006 scan showed bulging and 

spondylitic changes at C4-5, C5-6, and C6-7 with mild ventral impingement and mild multilevel encroachment. A 

May 16, 2007 scan noted no major change from the September 26, 2006 study. An April 12, 2011 scan showed 

multilevel spondylosis resulting in multilevel neural foraminal stenosis and no frank herniation. An April 13, 2012 

scan revealed no significant change. A September 4, 2014 scan showed left foraminal stenosis at C6-7 due to an 

eccentric disc bulge, a prominent right disc herniation at C5-6, and right foraminal stenosis at C4-5. An April 14, 

2015 scan demonstrated degenerative changes including tiny right disc protrusions at C4-5 and C5-6. A cervical spine 

computerized tomography (CT) scan that day revealed mild-to-moderate degenerative changes with no high-grade 

central or foraminal narrowing.
5

a reasonable degree of medical certainty, appellant had herniated cervical discs at C5-6 and C6-7, 

which required surgery to prevent further deterioration in her condition, further nerve damage, and 

increased symptoms of neck pain, arm pain, weakness, and numbness.

Dr. Harrop performed C5-6 and C6-7 anterior cervical discectomy and fusion on 

June 8, 2015.

By decision dated July 1, 2015, OWCP denied modification of the October 28, 2008 loss 

of wage-earning capacity determination. It found that the special weight of the medical evidence 

rested with the opinion of Dr. Simon, the impartial medical examiner, who determined that 

appellant’s employment injury had resolved without residuals and that she could return to her 

modified part-time work, with regard to the accepted conditions.7

In a July 31, 2015 supplemental report, Dr. Simon determined that appellant could return 

to modified-duty work. He advised that her medical restrictions were due to the underlying 

cervical degenerative disc disease, not the employment injury.

On October 27, 2015 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits. It found that Dr. Simon’s opinion that appellant no longer had disability or 

residuals due to the accepted conditions constituted the weight of the medical evidence. 

Appellant, through counsel, disagreed with the proposed termination. He maintained that 

OWCP failed to properly document additional conditions that should have been accepted. 

Additional medical evidence submitted included treatment notes dated August 25, 2015 from 

Jacque Coyle, a social worker. Psychiatric evaluations dated September 22 and October 20, 2015

contained illegible signatures.

On November 11, 2015 Dr. Bruno noted current complaints of radiating low back pain, left 

worse than right, and left greater than right shoulder blade pain that radiated to the head. He noted 

negative straight-leg raising bilaterally, decreased left L5-S1 strength, and equal pinprick sensation 

bilaterally. Dr. Bruno opined that appellant had a decrease in neck pain, but continued with 

shoulder blade spasms. He recommended a slow increase in activity.

In a November 20, 2015 report, Dr. Harry A. Doyle, a Board-certified psychiatrist, 

described the employment injury. He reviewed SOAFs and medical evidence, and noted 

appellant’s June 8, 2015 cervical spine surgery. Dr. Doyle also referenced psychiatric evaluations 

and psychotherapy notes not found in the case record before the Board. He indicated that appellant 

reported that she had not experienced significant relief of neck pain and continued to have 

persistent headaches, low back, left hip, and leg pain after the surgery, which led to increasing 

depression. Following mental status examination and testing, Dr. Doyle diagnosed major 

depressive disorder, moderate, and generalized anxiety disorder, status post cervical sprain, 

 

7 On October 19, 2015 counsel appealed the July 1, 2015 decision to the Board. By decision dated September 25, 

2017, the Board reversed the July 1, 2015 OWCP decision, finding that it was error for OWCP to determine on 

October 28, 2008 that a part-time modified position fairly and reasonably represented appellant’s wage-earning 

capacity because she was employed full time when she was injured on September 14, 2005. Docket No. 16-0075 

(issued September 25, 2017). 
6

brachial neuritis or radiculitis, not otherwise specified, and thoracic or lumbosacral neuritis or 

radiculitis, not otherwise specified which, he opined, were due to the permanent physical residuals 

and impairments associated with the September 14, 2005 work injury. He concluded that, as a 

result of appellant’s chronic pain and ongoing symptoms of anxiety and depression, she could not 

return to any full- or part-time work. 

In reports dated December 22, 2015, Dr. Harrop noted seeing appellant following her 

cervical spine surgery. She continued to have left posterior neck muscle spasms. X-rays showed 

that her graft and hardware were maturing nicely. Dr. Harrop maintained that since appellant had 

no symptoms before the work injury and immediately after the fall had severe radicular pain, she 

may have some degree of a traction injury and neuropathic pain and symptoms. 

On December 29, 2015 Dr. Bruno reported that appellant continued to have radiating low 

back pain, shoulder spasms, and migraine headaches. He noted that she was slightly more mobile.

By decision dated March 3, 2016, OWCP found that the special weight of the medical 

evidence rested with the impartial medical opinion of Dr. Simon who performed a thorough 

examination, reviewed the SOAF and all medical evidence, explained in depth why he disagreed 

with the diagnosis of cervical disc herniation, and advised that the accepted conditions had 

resolved. It also concluded that, as the weight of the medical evidence indicated that appellant had 

recovered from the employment injury, she was not entitled to coverage for the diagnoses of 

anxiety and depression. OWCP finalized the termination of all benefits, effective March 6, 2016. 

Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. Additional evidence submitted included cervical spine x-rays dated June 18, July 17, 

and August 31, 2015 which demonstrated a stable C5-7 anterior cervical fusion. In a March 14, 

2016 report, Dr. Bruno reported appellant’s chief complaint of low back pain. He indicated that 

her condition was no better, noting continued right arm radiculitis, radiculopathy, and persistent 

radiating low back pain, migraines, and headaches.8

Appellant did not testify at the hearing, held on October 27, 2016. Counsel asserted that 

OWCP misrepresented the case because the SOAF did not include all conditions that should have 

been accepted, and that Dr. Simon’s report was not well rationalized.

By decision dated January 9, 2017, an OWCP hearing representative affirmed the March 3, 

2016 decision. He found that a correct SOAF, which identified the accepted conditions, was 

provided to Dr. Smith and Dr. Simon. The hearing representative found the special weight of the 

medical opinion rested with Dr. Simon who opined that the accepted conditions had resolved and 

that appellant’s continuing cervical symptoms were due to her degenerative cervical condition and 

not to the accepted conditions. He further found that appellant had not met her burden of proof to 

establish that additional cervical conditions or an emotional condition were employment related.

 

8 Appellant additionally submitted evidence previously of record including reports of hospitalization for the June 8, 

2015 cervical spine surgery.
7

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.9 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.10 

ANALYSIS -- ISSUE 1

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

compensation and medical benefits, effective March 6, 2016. The accepted conditions are cervical 

sprain, brachial neuritis/radiculitis, and thoracic/lumbar neuritis/radiculitis. OWCP determined 

that a conflict in medical evidence had been created between the opinions of Dr. Bruno, an 

attending neurosurgeon, and Dr. Smith, an OWCP referral Board-certified orthopedist, regarding 

whether appellant had continuing residuals of the accepted conditions. It then properly referred 

her to Dr. Simon, also Board-certified in orthopedic surgery, for an impartial medical evaluation.

In his June 7 and July 31, 2015 reports, Dr. Simon described the relevant facts and 

evaluated the course of appellant’s employment-related conditions. He addressed the medical 

record, including his disagreement with the interpretation of the 2014 cervical spine MRI scan. 

Dr. Simon made his own examination findings and fully explained his conclusions, including that 

appellant’s accepted conditions had resolved, that her continuing cervical symptoms were due to 

preexisting cervical degenerative disc disease, and that any restrictions were due to the underlying 

cervical degenerative disc disease and were not related to the employment injury. 

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

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

that she could return to modified duty. He advised that the restrictions provided were due to 

appellant’s underlying cervical degenerative disc disease and not to the accepted conditions. 

Dr. Simon’s opinion is, therefore, entitled to the special weight accorded to impartial medical 

examiners and constitutes the weight of the medical evidence.11 

The medical evidence appellant submitted before the March 6, 2016 termination of wageloss compensation and medical benefits was insufficient to overcome the special weight accorded

Dr. Simon as an impartial medical specialist. On May 14, 2015 Dr. Bruno indicated that appellant 

had herniated discs at C5-6 and C6-7 that required surgery. As noted, these conditions are not 

employment related. On November 11 and December 29, 2015 Dr. Bruno merely described 

appellant’s complaints and findings. The Board has long held that reports from a physician who 

was on one side of a medical conflict that an impartial specialist resolved, are generally insufficient 

 

9

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

10 Id.

11 See T.W., Docket No. 16-1599 (issued January 11, 2017).
8

to overcome the special weight accorded to the report of the impartial medical examiner, or to

create a new conflict.12 Dr. Bruno had been on one side of the conflict resolved by Dr. Simon.

Furthermore, as an emotional condition had not been accepted as employment related at 

the time of the termination of benefits, Dr. Doyle’s opinion that appellant could not return to her 

former job as a customer service representative or any other full- or part-time work is of diminished 

probative value on the issue of whether appellant continued to have residuals of the accepted 

cervical sprain, brachial neuritis/radiculitis, other, and unspecified thoracic/lumbar neuritis/

radiculitis. Likewise, Dr. Harrop’s opinion was insufficient to establish additional conditions. He 

did not clearly comment on and explain whether appellant had continued residuals of the accepted 

conditions. 

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

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

examiner,13 and the additional medical evidence submitted is insufficient to overcome the weight 

accorded him regarding whether appellant had residuals of her accepted conditions. OWCP,

therefore, properly terminated appellant’s wage-loss compensation and medical benefits effective 

March 6, 2016.14

LEGAL PRECEDENT -- ISSUE 2

Once OWCP meets its burden of proof to terminate compensation benefits, the burden 

shifts to the claimant to establish continuing disability causally related to the accepted conditions.15 

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.16 

ANALYSIS -- ISSUE 2

The Board finds that the evidence of record is insufficient to establish continuing 

employment-related disability after the March 6, 2016 termination of compensation benefits. 

Following the termination, appellant submitted cervical spine x-rays dated June 18, 

July 17, and August 31, 2015, which demonstrated a stable C5-7 anterior cervical fusion, and did 

not discuss a cause of any diagnosed condition. Medical evidence that does not offer any opinion 

 

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

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

14 Manuel Gill, 52 ECAB 282 (2001).

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

16 Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).
9

regarding the cause of an employee’s condition is of limited probative value on the issue of causal 

relationship.17

In a March 14, 2016 report, Dr. Bruno merely described appellant’s complaints and 

advised that she was no better. As noted, he had been on one side of the conflict in medical 

evidence and, thus, his report is insufficient to overcome the special weight accorded Dr. Simon 

as the impartial medical specialist.

18

As there is no medical evidence of record of sufficient rationale to establish that appellant 

continued to be disabled due to the September 14, 2005 work injury, she did not meet her burden 

of proof to establish continuing employment-related disability after March 6, 2016.19

LEGAL PRECEDENT -- ISSUE 3

An employee has the burden of proof to establish that any specific condition for which 

compensation is claimed is causally related to the employment injury.20 Causal relationship is a 

medical issue, and the medical evidence required to establish causal relationship is rationalized 

medical evidence.21 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 employee.22 Neither the mere 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.23

It is well established that where employment factors cause an aggravation of an underlying 

physical condition, the employee is entitled to compensation for periods of disability related to the 

aggravation. Where the medical evidence supports an aggravation or acceleration of an underlying 

condition precipitated by working conditions or injuries, such disability is compensable. However, 

the normal progression of untreated disease cannot be said to constitute an “aggravation” of a 

condition merely because the performance of normal work duties reveal the underlying condition. 

For the conditions of employment to bring about an aggravation of preexisting disease, the 

employment must cause acceleration of the disease or precipitate disability.24 

 

17 Willie M. Miller, 53 ECAB 697 (2002).

18 See T.W., Docket No. 16-1599 (issued January 11, 2017).

19 G.H., Docket No. 16-0432 (issued October 12, 2016).

20 Kenneth R. Love, 50 ECAB 276 (1999).

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

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

23 Dennis M. Mascarenas, 49 ECAB 215 (1997).

24 A.C., Docket No. 08-1453 (issued November 18, 2008).
10

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.25 The implementing regulation 

states 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.26 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.27

ANALYSIS -- ISSUE 3

OWCP accepted that a September 14, 2005 fall at work caused brachial neuritis/radiculitis, 

thoracic/lumbar neuritis/radiculitis, and a cervical sprain.28

The Board finds that appellant has not established that her diagnosed herniated cervical 

disc condition was causally related to the September 14, 2005 employment injury.

In April 2015, OWCP determined that a conflict in medical evidence had been created 

between Dr. Bruno, a treating physician, and Dr. Smith, OWCP’s referral physician, regarding 

whether appellant had continued residuals of the September 14, 2005 employment injury. OWCP, 

therefore, properly referred appellant to Dr. Simon, a Board-certified orthopedic surgeon, for an 

impartial medical evaluation to resolve the conflict. Dr. Simon was asked whether any diagnosed 

condition was caused by the employment injury and whether the recommended cervical spine 

surgery should be authorized.

In a June 7, 2015 report, Dr. Simon noted his review of the SOAF and medical record. He 

described appellant’s complaints and noted findings that included limited cervical and left shoulder 

range of motion, bilateral negative straight-leg raising, and tenderness to palpation of the trapezius 

muscles. Dr. Simon reviewed a September 4, 2014 cervical spine MRI scan and interpreted it as 

showing a large osteophyte in the foramen on the right side at C5-6. He noted that no other 

physician, except the physician who initially read this MRI scan, had diagnosed disc herniations. 

Dr. Simon diagnosed degenerative disc disease of the cervical spine, particularly at C5-6, with 

mild degenerative changes at C4-5 and C6-7, which had worsened with the passage of time and 

were not related to the September 14, 2005 work injury. He indicated that the requested surgery 

was not for an employment-related condition, but for appellant’s underlying cervical degenerative 

disc disease. Dr. Simon concluded that the accepted conditions had resolved. In a July 31, 2015 

 

25 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

26 20 C.F.R. § 10.321.

27

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

28 Contrary to counsel’s assertion regarding the SOAF, both Dr. Smith and Dr. Simon were provided proper SOAFs 

that delineated the accepted conditions and appellant’s course of treatment. 
11

supplemental report, he advised that appellant’s restrictions were due to the underlying cervical 

degenerative disc disease and not related to the work injury. 

Following Dr. Simon’s report, appellant submitted a December 22, 2015 report from

Dr. Harrop who performed June 8, 2015 cervical spine surgery. He opined that, since appellant 

had no symptoms prior to the employment injury and immediately after the fall had severe 

radicular pain, she could have some degree of a traction injury and neuropathic pain and symptoms. 

An opinion that a condition is causally related to an employment injury because the employee was 

asymptomatic before the injury, but symptomatic after it is insufficient, without supporting 

rationale, to establish causal relationship. Dr. Harrop’s report is also couched in speculative terms. 

The Board has long held that medical opinions that are speculative or equivocal in character have 

little probative value. Dr. Harrop’s opinion is of insufficient rationale to expand appellant’s claim.

Dr. Simon had full knowledge of the relevant facts and evaluated the course of appellant’s 

employment-related orthopedic conditions. He is a specialist in the appropriate field, and he based 

his opinion on a proper factual and medical history. Dr. Simon addressed the medical record, 

including his disagreement with the interpretation of the 2014 cervical spine MRI scan. He made 

his own examination findings and fully explained his conclusions that appellant’s accepted 

conditions had resolved, that her continuing cervical symptoms were due to nonemploymentrelated cervical degenerative disc disease, and that the recommended cervical spine surgery was 

not warranted for any employment-related condition. The Board concludes that Dr. Simon’s 

opinion is entitled to the special weight accorded an impartial medical examiner with regard to 

appellant’s accepted orthopedic conditions. He found no basis on which to attribute any continuing 

cervical condition to the September 14, 2005 employment injury.

The Board further finds that appellant has not established that her diagnosed major 

depressive disorder and anxiety disorder conditions were causally related to the September 14, 

2005 employment injury. 

In his November 15, 2015 report, Dr. Doyle described the employment injury. He 

reviewed SOAFs and medical evidence, noting appellant’s June 8, 2015 cervical spine surgery. 

Dr. Doyle also referenced psychiatric evaluations and psychotherapy notes not found in the case 

record. He noted that appellant related that she had not experienced significant relief of neck pain 

and continued to have persistent headaches as well as low back, left hip, and lower extremity pain 

following the surgery, which led to increasing depression. Following mental status examination 

and testing, Dr. Doyle diagnosed major depressive disorder, moderate, and generalized anxiety 

disorder, status post cervical sprain, brachial neuritis or radiculitis, not otherwise specified, and 

thoracic or lumbosacral neuritis or radiculitis, not otherwise specified which, he opined, were due 

to the permanent physical residuals and impairments associated with the September 14, 2005 work 

injury. He concluded that, as a result of appellant’s chronic pain and ongoing symptoms of anxiety 

and depression, appellant could not return to any full- or part-time work. 

The opinion of a physician supporting causal relationship must be based on a complete 

factual and medical background, supported by affirmative evidence, must address the specific 

factual and medical evidence of record, and must provide medical rationale explaining the nature 

of the relationship between the diagnosed condition and the established incident or factor of 

employment. Dr. Doyle indicated that appellant’s depression and anxiety disorder were due to the 
12

permanent physical residuals and impairments associated with the September 14, 2005 work 

injury, including chronic pain. He also indicated that, based on appellant’s complaints, the June 8, 

2015 surgery did not ease her symptoms. This surgery, however, was not for an accepted 

condition. Dr. Simon, the impartial medical examiner, opined that the employment-related 

component of appellant’s cervical condition had resolved without residuals. While Dr. Doyle 

referenced the September 14, 2005 employment injury in his November 20, 2015 report, he did 

not sufficiently explain how this injury led to appellant’s psychiatric diagnoses. The Board has 

long held that medical opinions not containing rationale on causal relationship are of diminished 

probative value and are generally insufficient to meet appellant’s burden of proof.29

The reports with illegible signatures do not constitute competent medical evidence.30 Other 

reports were signed by a social worker. Social workers, however, are not considered physicians

as defined under section 8101(2) of FECA.31 These reports, therefore, do not constitute competent 

medical evidence.32

Consequently, appellant has not established additional cervical and emotional conditions

causally related to the September 14, 2005 employment injury. 

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

compensation and medical benefits, effective March 6, 2016. The Board further finds that 

appellant has not met her burden of proof to establish continuing employment-related disability 

after March 6, 2016 or additional cervical and emotional conditions causally related to the 

September 14, 2005 employment injury.

 

29 See A.M., Docket No. 17-1107 (issued October 17, 2017).

30 See L.W., Docket No. 17-0744 (issued December 12, 2017); Merton J. Sills, 39 ECAB 572, 575 (1988).

31 5 U.S.C. § 8101(2); see also M.B., Docket No. 17-1606 (issued February 14, 2018).

32 M.B., id.
13

ORDER

IT IS HEREBY ORDERED THAT the January 9, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 19, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board