United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Woodbridge, NJ, Employer

__________________________________________

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Docket No. 18-1228

Issued: March 8, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 31, 2018 appellant, through counsel, filed a timely appeal from a January 3, 2018 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

Federal Employees’ Compensation Act3(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 The record also contains an April 24, 2018 decision terminating appellant’s wage-loss compensation and medical 

benefits, effective that date, as he had no further residuals or disability due to his accepted work injury. Appellant has 

not appealed this decision and thus it is not before the Board at this time. See 20 C.F.R. §§ 501.2(c), 501.3.

3 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has established that the acceptance of his claim should be 

expanded to include cervical spondylosis without myelopathy, cervical radiculopathy, a herniated 

cervical disc, and lumbar radiculopathy causally related to the August 12, 2014 employment 

injury.

FACTUAL HISTORY

On August 12, 2014 appellant, then a 60-year-old carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, he injured the right side of his body from the back of his 

head to his foot, when his foot slipped off a bumper while he was in the performance of duty. He 

stopped work on August 13, 2014. OWCP initially accepted the claim for neck sprain and sprains 

of the right knee, right hip and thigh, right shoulder, right foot, and right ankle. It subsequently 

expanded acceptance of the claim to include advanced degenerative arthritis of the right 

acromioclavicular (AC) joint, a tear of the right medial meniscus, an aggravation of preexisting 

osteoarthritis of the right knee, osteoarthritis of the right shoulder, and an aggravation of 

preexisting severe degenerative disc disease at C5-6 and C6-7. OWCP paid appellant wage-loss 

compensation for total disability on the supplemental rolls beginning September 27, 2014 and on 

the periodic rolls beginning December 14, 2014. 

On December 3, 2014 Dr. James E. Patti, a Board-certified orthopedic surgeon, evaluated 

appellant for pain in his cervical spine. He noted that appellant had injured his neck at work on 

August 12, 2014 when he slipped getting into his truck. Dr. Patti diagnosed cervical spondylosis 

with myelopathy, cervical radiculopathy, and neck sprain.

In December 29, 2014 and January 22, 2015 attending physician’s reports (Form CA-20),

Dr. Patti diagnosed cervical spondylosis, cervical radiculopathy, and neck sprain and checked a 

box marked “yes” that the condition was caused or aggravated by employment as it occurred at 

work. 

On February 18, 2015 Dr. Patti diagnosed a cervical herniated nucleus pulposus (HNP) and 

noted that electrodiagnostic testing performed February 11, 2015 revealed probable radiculopathy 

on the right at L4-5.4 

OWCP on February 26, 2015 referred appellant to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. It requested that Dr. Askin address the extent 

of appellant’s current disability and need for further medical treatment.

In a report dated March 13, 2015, Dr. Askin noted that OWCP had accepted as 

employment-related sprains of the neck, right knee, right ankle, right hip and thigh, right shoulder, 

right foot, and a right medial meniscal tear. He found that appellant had no residuals of his 

accepted work injury. Dr. Askin asserted that appellant had preexisting right knee osteoarthritis 

and that his fall had increased his discomfort without altering the “baseline condition.”

 

4 Dr. Patti continued to submit progress reports regarding his treatment of appellant for a cervical condition. 
3

In a progress report dated February 1, 2016, Dr. Patti diagnosed cervical spondylosis, 

cervical radiculopathy, a cervical herniated disc, neck sprain, and lumbar spondylosis causally 

related to appellant’s August 12, 2014 employment injury.5 He requested authorization for surgery 

on the cervical spine. On April 13, 2016 Dr. Patti requested that OWCP expand acceptance of 

appellant’s claim to include cervical spondylosis, cervical radiculopathy, and a cervical herniated 

disc as “directly causally related to [appellant’s] injury of August 12, 2014.”

6

 

OWCP determined that a conflict in medical opinion existed regarding appellant’s current 

condition and disability from employment and whether he had sustained additional conditions as 

a result of his August 12, 2014 employment injury and the extent of his disability. It referred 

appellant to Dr. Edward Krisiloff, a Board-certified orthopedic surgeon, for an impartial medical 

examination. 

On July 28, 2016 Dr. Krisiloff opined that the accepted sprains of the right knee, right 

shoulder, cervical spine, lumbar spine, and ankle had resolved. He advised that the right knee 

osteoarthritis did not result from the work injury. Dr. Krisiloff related, “As far as the cervical and 

lumbar spine are concerned, in this case the initial sprain which was accepted as a condition after 

[appellant’s] initial injury in 2014 has in my opinion resolved, and any further treatment regarding 

the neck or lower back would be due to his underlying degenerative disc disease and arthritis and 

is not related in any way to the initial injury.” He opined that appellant’s cervical spondylosis had 

not resulted from his 2014 work injury and that the proposed cervical spine surgery was not 

medically necessary or due to his employment. Dr. Krisiloff asserted that appellant had no 

additional conditions arising from the August 12, 2014 employment injury.

In a report dated September 16, 2016, Dr. Patti again advised that the proposed anterior 

cervical decompression and fusion at C5-6 and C6-7 was medically necessary to treat appellant’s 

cervical spondylosis, cervical radiculopathy, and cervical herniated disc.

7

 He opined that the 

diagnosed conditions were causally related to appellant’s August 12, 2014 employment injury. 

On December 28, 2016 appellant notified OWCP that he had retired from the employing 

establishment, requested that it stop his wage-loss compensation, effective December 31, 2016,

and also requested an election of benefits form. He subsequently provided a completed election 

form specifying that he wanted to receive retirement benefits in lieu of wage-loss compensation 

benefits under FECA. 

 

5 On April 14, 2016 Dr. Patti indicated that he had treated appellant beginning December 3, 2014 for injuries from 

his August 12, 2014 employment injury. He advised that appellant complained of pain in his back at the time of the 

December 3, 2014 evaluation. Dr. Patti diagnosed lumbar spondylosis, lumbar radiculopathy, and lumbar spinal 

stenosis due to appellant’s August 12, 2014 work injury. He provided a similar report on June 20, 2016. 

6 Dr. Patti on April 14, 2016 requested authorization for an anterior cervical decompression and fusion at C5-6 and 

C6-7, noting that the treatment was medically necessary and causally related to appellant’s August 12, 2014 

employment injury. 

7

In a September 12, 2016 progress report, Dr. Patti diagnosed cervical spondylosis, cervical radiculopathy, a 

traumatic herniated cervical disc, neck sprain, and lumbar spondylosis which he attributed to the August 12, 2014 

employment injury. He continued to submit progress reports and CA-20 forms. 
4

OWCP on January 11, 2017 determined that a conflict in medical opinion existed regarding 

appellant’s current condition and disability from employment and whether he had sustained 

additional conditions as a result of his August 12, 2014 employment injury. It found that Dr. Askin 

had not addressed all the accepted conditions in his report and that his report was consequently 

insufficient to create a conflict in medical opinion. OWCP thus found that Dr. Krisiloff was a 

second opinion examiner. 

By letter dated April 20, 2017, counsel noted that he no longer received workers’

compensation benefits. He requested that OWCP schedule a referee opinion regarding claim 

expansion and authorization for surgery. 

OWCP on May 2, 2017 referred appellant to Dr. Dean Carlson, a Board-certified 

orthopedic surgeon, for an impartial medical examination. It mailed the referral letter to counsel 

at his address of record. 

In a report dated May 29, 2017, Dr. Carlson reviewed the history of injury and appellant’s 

current complaints of pain in the right knee, neck, low back, right hip, right shoulder, and right 

ankle. On examination, he measured range of motion of the back, neck, hips, shoulders, ankles, 

wrists, and thumbs. Dr. Carlson found no tenderness of the cervical or lumbar spine and full motor 

strength on flexion and extension. He diagnosed as primary conditions right shoulder 

glenohumeral osteoarthritis, right knee osteoarthritis, and severe degenerative arthritis of the 

cervical spine at C5-6 and C6-7. Dr. Carlson also diagnosed cervical spine degenerative arthritis, 

or spondylosis, which he opined was not employment related. He related, “The sprain of the 

cervical spine likewise aggravated the advanced C5-6, C6-7 degenerative arthritis. The acute 

sprain subsided, but the degenerative spondylosis progresses, causing chronic pain and stiffness.”

Dr. Carlson identified the diagnosis code for the cervical spine degenerative arthritis, or 

spondylosis, using the International Classification of Diseases, Tenth Revision (ICD-10) as Code 

M47.812. He attributed appellant’s current cervical condition to preexisting cervical osteoarthritis, 

noting that the cervical sprain superimposed on the C5-6 and C6-7 osteoarthritis would have 

resolved within a year of the injury. Dr. Carlson related:

“The cervical spondylosis is a preexisting condition and should not be accepted as 

an expansion of [appellant’s] cervical sprain. I find no subjective complaints nor 

dermatomal radiation of symptoms nor motor weakness to consider cervical 

radiculopathy. I would not consider expanding his diagnosis to include the 

[magnetic resonance imaging scan study] degenerative disc condition. There are 

no additional conditions that should be accepted.” 

Dr. Carlson opined that the requested anterior cervical decompression and fusion was not 

warranted as the cervical disc degeneration was not employment related. 

On January 2, 2018 OWCP expanded acceptance of appellant’s claim to include an 

aggravation of preexisting right knee osteoarthritis and an aggravation of preexisting severe 

degenerative disc disease at C5-6 and C6-7, which it identified as ICD-10 Code M51.36. 
5

By decision dated January 3, 2018, OWCP denied expansion of the acceptance of 

appellant’s claim to include cervical spondylosis without myelopathy, cervical radiculopathy, a 

cervical HNP of a cervical intervertebral disc, and lumbar radiculopathy. 

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 he or she is an employee of 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 or 

specific condition for which compensation is claimed is 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

Where an employee claims that, a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.11 To establish causal relationship between the 

condition, as well as any attendant disability claimed and the employment event or incident, the 

employee must submit rationalized medical opinion evidence based on a complete factual and 

medical background, supporting such a causal relationship.12 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.13 The weight of medical evidence is determined by its reliability, its probative value, 

its convincing quality, the care of analysis manifested, and the medical rationale expressed in 

support of the physician’s opinion.

FECA provides that, if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.14 

For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

15

 Where OWCP has referred the case to an impartial medical examiner (IME) to 

 

8 Supra note 3.

9 See C.W., Docket No. 17-1636 (issued April 25, 2018).

10 See J.S., Docket No. 18-1085 (issued February 12, 2019).

11 See T.F., Docket No. 17-0645 (issued August 15, 2018).

12 See S.A., Docket No. 18-0399 (issued October 16, 2018).

13 See P.M., Docket No. 18-0287 (issued October 11, 2018).

14 5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

15 C.H., Docket No .18-1065 (issued November 29, 2018).
6

resolve a conflict in the medical evidence, the opinion of such a specialist, if sufficiently wellreasoned and based upon a proper factual background, must be given special weight.16

When OWCP obtains an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or 

elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in 

his original report.17 

ANALYSIS

The Board finds that the case is not in posture for decision regarding whether the 

acceptance of appellant’s claim should be expanded to include cervical spondylosis without 

myelopathy, cervical radiculopathy, a herniated cervical disc, and lumbar radiculopathy causally 

related to his August 12, 2014 employment injury. 

OWCP accepted that on August 12, 2014 appellant sustained cervical sprain and sprains of 

the right knee, right hip and thigh, right shoulder, right foot, and right ankle, advanced degenerative 

arthritis of the right AC joint, a tear of the right medial meniscus, and osteoarthritis of the right 

shoulder. On January 2, 2018 it expanded acceptance of the claim to include preexisting 

osteoarthritis of the right knee and an aggravation of preexisting severe degenerative disc disease 

at C5-6 and C6-7. 

OWCP properly determined that a conflict arose between Dr. Krisiloff, an OWCP referral 

physician, and Dr. Patti, appellant’s attending physician, regarding whether his claim should be 

expanded to include additional conditions, in particular cervical spondylosis, cervical 

radiculopathy, and a traumatic cervical HNP. It referred him to Dr. Carlson, a Board-certified 

orthopedic surgeon, for an impartial medical examination.

Where a case is referred to an IME 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.18 The Board finds, however, that Dr. Carlson’s opinion 

is insufficient to resolve the conflict in medical opinion.

On May 29, 2017 Dr. Carlson provided examination findings of full motor strength with 

no cervical or lumbar tenderness. He diagnosed osteoarthritis of the right shoulder and right knee 

and severe degenerative arthritis of the cervical spine at C5-6 and C6-7, which he identified using

ICD-10 Code M47.812. Dr. Carlson also diagnosed multiple resolved and nonemployment-related 

conditions, including degenerative arthritis of the cervical spine, or spondylosis, without 

radiculopathy, which he opined was not employment related. He found that appellant’s accepted 

cervical sprain had aggravated his C5-6 and C6-7 degenerative arthritis and that the aggravation 

had resolved within 12 months of the injury. Dr. Carlson further opined that appellant did not have 

cervical radiculopathy or any additional employment-related conditions. He advised that he did 

 

16 W.M., Docket No. 18-0957 (issued October 15, 2018).

17 See R.T., Docket no. 17-0925 (issued December 14, 2017).

18 See A.E., Docket No. 18-0891 (issued January 22, 2019).
7

not require surgery as a result of the work injury as the underlying cervical disc degeneration was 

not related to his employment and as any aggravation of the condition resolved within a year of 

the injury.

Based on Dr. Carlson’s report, OWCP expanded acceptance of appellant’s claim to include 

an aggravation of preexisting degenerative disc disease at C5-6 and C6-7, which it identified using 

ICD-10 Code M51.36. It denied expansion of his claim to include cervical spondylosis without 

myelopathy. Dr. Carlson, however, identified the relevant cervical diagnosis as ICD-10 Code 

M47.812, which is spondylosis without myelopathy or radiculopathy of the cervical region. The 

ICD-10 Code used by OWCP to expand acceptance of the claim, ICD-10 code M51.36, is used for 

the diagnosis of an aggravation of other intervertebral disc degeneration of the lumbar region. 

OWCP has failed to explain why it used a diagnosis other than that provided by Dr. Carlson or 

why it used an ICD-10 code relevant to the lumbar spine when it expanded acceptance of 

appellant’s cervical condition. It is therefore unclear what condition OWCP has accepted based 

on Dr. Carlson’s report.

Additionally, the Board notes that Dr. Carlson’s report is internally inconsistent as he found 

that appellant’s degenerative arthritis of the cervical spine, or spondylosis without radiculopathy 

was not employment related and that OWCP should not accept any additional employment-related 

conditions.19 Dr. Carlson further found, however, that appellant’s employment-related cervical 

sprain had temporarily aggravated his degenerative arthritis at C5-6 and C6-7. 

As noted, the Board has held that, when OWCP obtains an opinion from an IME for the 

purpose of resolving a conflict in the medical evidence and the specialist’s opinion requires 

clarification or elaboration, it must secure a supplemental report from the specialist to correct the 

defect in his original report.20 Consequently, the Board finds that the case must be remanded to 

OWCP. On remand, OWCP should request that Dr. Carlson clarify whether the acceptance of 

appellant’s claim should be expanded to include either a temporary or permanent aggravation of a 

cervical condition. It should additionally request that Dr. Carlson specifically address whether the 

acceptance of the claim should be expanded to include lumbar radiculopathy. Following this and 

any further development deemed necessary, it shall issue a de novo decision.21

CONCLUSION

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

 

19 See generally W.H., Docket No. 16-1047 (issued October 25, 2016).

20 See J.S., Docket No. 17-0626 (issued January 22, 2019).

21 On appeal counsel argues that he did not receive a copy of OWCP’s referral of appellant to Dr. Carlson. It 

appears from a review of the record that OWCP sent a copy of the May 2, 2017 referral letter to counsel at his address 

of record and there is no evidence that it was returned as undeliverable. Absent evidence to the contrary, a notice 

mailed in the ordinary course of business is presumed to have been received by the intended recipient. C.S., Docket 

No. 17-0167 (issued April 11, 2018). This is commonly referred to the mailbox rule. It arises when the record reflects 

that the notice was properly addressed and duly mailed. See V.H., Docket No. 18-1124 (issued January 16, 2019). 

The current record is devoid of evidence to rebut the presumption that counsel did not received a copy of the May 2, 

2017 letter referring appellant to Dr. Carlson.
8

ORDER

IT IS HEREBY ORDERED THAT the January 3, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: March 8, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board