United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.B., Appellant

and

U.S. POSTAL SERVICE, PHILADELPHIA 

NETWORK DISTRIBUTION CENTER, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 19-1745

Issued: February 25, 2021

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 19, 2019 appellant, through counsel, filed a timely appeal from a March 20, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 Board notes that, following the March 20, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

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.

ISSUE

The issue is whether appellant has met her burden of proof to establish expansion of the 

acceptance of her claim to include additional conditions and disability from work commencing

October 1, 2016 causally related to her accepted June 13, 2016 employment injury.

FACTUAL HISTORY

On June 17, 2016 appellant, then a 60-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on June 13, 2016 she bruised the right side of her body and her left knee 

when she was struck by a bulk mail container while in the performance of duty. She stopped work 

on June 13, 2016. OWCP accepted the claim for right shoulder sprain, right knee strain, and left 

knee contusion. It paid appellant wage-loss compensation for total disability on the supplemental 

rolls from July 29 through September 30, 2016. 

A September 19, 2016 magnetic resonance imaging (MRI) scan of the right shoulder 

revealed rotator cuff tendinosis, bursitis, a subacromial spur, and a superior labral tear extending 

to the anterior and posterior. An MRI scan of the left knee of the same date showed patellar 

cartilage denudation with underlying marrow edema and cystic change. 

In an initial evaluation dated September 30, 2016, Dr. Luke S. Austin, a Board-certified 

orthopedic surgeon, evaluated appellant for right shoulder pain after a June 13, 2016 employment 

injury. He noted that an MRI scan had shown a small partial-thickness tear of the supraspinatus 

with fluid in the bursa and a superior labral tear. Dr. Austin diagnosed right shoulder pain and a 

sprain of the right rotator cuff capsule. He opined that appellant’s symptoms resulted from bursitis 

and a small rotator cuff tear rather than the superior labrum anterior and posterior (SLAP) tear, 

which he indicated that was a “common wear and tear finding of the shoulder....” Dr. Austin 

advised that she had no shoulder restrictions. He opined that the diagnosed conditions of bursitis 

and partial-thickness rotator cuff tear were causally related to appellant’s June 13, 2016 

employment injury. In a work restriction note of the same date, Dr. Austin indicated that she could 

resume full-duty work with no restrictions.

On October 18, 2016 appellant filed a claim for compensation (Form CA-7) for disability 

from October 1 through 14, 2016. She continued to file CA-7 forms requesting wage-loss 

compensation from October 15, 2016 onward. 

In an October 25, 2016 letter, OWCP notified appellant that Dr. Austin had released her to 

her usual employment effective September 30, 2016 and advised her to arrange to return to work 

with the employing establishment. 

In a development letter dated October 26, 2016, OWCP informed appellant of the type of 

evidence necessary to establish her claim for disability compensation, including a medical opinion 

 

3 5 U.S.C. § 8101 et seq.
3

explaining why she was unable to return to work after her physician, Dr. Austin, had released her 

to return to full duty. It afforded her 30 days to submit the necessary information. No response 

was received.

By decision dated December 27, 2016, OWCP denied appellant’s claim for wage-loss

compensation commencing October 1, 2016. 

On January 5, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Thereafter, OWCP received an October 20, 2016 report from Dr. Garo Avetian, an 

osteopath. Dr. Avetian advised that he was treating appellant for injuries sustained in a June 13, 

2016 motor vehicle accident. He found that she was unable to work as a result of pain and 

diagnosed a right shoulder sprain/strain and SLAP tear.

In a report dated November 2, 2016, Dr. Avetian noted that appellant had sustained a SLAP 

tear and left knee injury on June 13, 2016 when a bulk mail container hit her right side. On 

examination he found a positive Apley test of the left knee, lower extremity strength of 4/5, 

positive Neer, Jobes, and Hawkin’s tests of the right shoulder, and 3-4/5 strength of the upper 

extremities. Dr. Avetian diagnosed a right shoulder sprain/strain, a right shoulder SLAP tear, and 

a left knee sprain/strain with left knee denudation of the patellar cartilage as demonstrated on MRI 

scan as an underlying factor. He noted that after a brief visit Dr. Austin had informed appellant 

that she had a tear and offered her an injection which she had declined. Dr. Avetian provided the 

same diagnoses in a November 23, 2016 report. He asserted that appellant had been disabled from 

employment beginning June 13, 2016. 

Thereafter, OWCP received a November 18, 2016 report from Dr. Lawrence I. Barr, an 

osteopath. Dr. Barr obtained a history of appellant being struck on the right side by a bulk mail 

container, resulting in left knee, right shoulder, and neck pain. On examination of the right 

shoulder, he found impingement and positive O’Brien’s and Hawkin’s tests. Dr. Barr diagnosed 

cervical sprain/strain with right radicular symptoms, a right shoulder sprain with impingement and 

a SLAP tear, and left knee sprain with an exacerbation of patellofemoral degenerative joint disease. 

He indicated that appellant remained symptomatic after a “work occurrence” and was currently 

not working.

In a December 28, 2016 progress report, Dr. Avetian advised that he was treating appellant 

for a June 13, 2016 employment injury to her right shoulder and left knee. He found some 

restriction of the right shoulder on Neer and Jobes testing and some improvement on the Hawkin’s 

test. Dr. Avetian noted that appellant was wearing a left knee brace. He diagnosed a sprain/strain 

of the right shoulder and left knee and a right shoulder SLAP tear. Dr. Avetian opined that 

appellant was “currently out of work and unable to work at this time, pending further treatment.” 

In an attending physician’s report (Form CA-20) dated January 11, 2017, Dr. Avetian

diagnosed a right shoulder tear and left knee condition. He checked a box marked “Yes” that the 

diagnosed conditions were caused or aggravated by an employment activity. Dr. Avetian found 

that appellant was totally disabled from June 22, 2016 to the present.
4

In an unsigned report dated January 4, 2017, Dr. Avetian and Dr. Gerald Vernon, an 

osteopath, evaluated appellant for right shoulder pain. Examination findings included a positive 

Neer’s sign, positive Hawkin’s sign, a positive empty can test, and anterior and posterior laxity 

without swelling or effusion. Dr. Vernon and Dr. Avetian diagnosed a right shoulder SLAP tear, 

inflammation with underlying osteoarthritis of the glenohumeral and acromioclavicular (AC) joint, 

and rotator cuff tendinosis with subacromial bursitis. The physicians noted that appellant had 

declined their recommendation of right shoulder surgery.

On January 16, 2017 Dr. Vernon discussed appellant’s continued complaints of left knee 

pain. On examination he found a small effusion at the suprapatellar area and a positive patella 

grind without laxity. Dr. Vernon diagnosed left knee patellofemoral syndrome, patella tendinosis, 

effusion, and a ganglion at the anterior cruciate ligament of the knee.

In a February 15, 2017 duty status report (Form CA-17), Dr. Avetian diagnosed a left knee 

and right shoulder condition and a SLAP tear and opined that appellant was disabled from 

employment.4 

On March 1, 2017 OWCP referred appellant to Dr. Noubar Didizian, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the extent and degree of any 

employment-related disability. 

By decision dated April 6, 2017, OWCP suspended appellant’s entitlement to wage-loss 

compensation and medical benefits effective April 7, 2017, pursuant to 5 U.S.C. § 8123(d), as she 

had failed to attend the scheduled medical examination with Dr. Didizian or provide a reason for 

her nonattendance. 

In a report dated April 24, 2017, Dr. Avetian discussed the history of appellant’s June 13, 

2016 employment injury and noted that she had sustained an injury-related labral tear confirmed 

by MRI scan as well as left knee trauma. He indicated that she had positive findings on 

examination of the knee, including positive Neer, Jobes, and Hawkin’s signs, and a positive Apley 

test. Dr. Avetian advised that appellant had underlying osteoarthritis “as a complicating factor.” 

He diagnosed a right SLAP lesion causally related to the accepted employment injury and found 

that she was disabled from employment. 

On June 28, 2017 Dr. Avetian provided examination findings and the same diagnoses as in 

his April 24, 2017 report. He found that appellant was unable to work.

By decision dated August 15, 2017, OWCP’s hearing representative set aside the 

December 27, 2016 and April 6, 2017 decisions. He determined that appellant had shown good 

cause for failing to attend the scheduled appointment with Dr. Didizian. The hearing representative 

further found that her physicians had diagnosed conditions not accepted by OWCP, but OWCP 

had failed to adjudicate whether her claim should be expanded. He further noted that OWCP had 

relied on one inadequately rationalized report from Dr. Austin in finding that appellant could 

resume work even though her attending physicians had found that she was disabled. The hearing 

representative instructed OWCP, on remand, to refer her for a second opinion examination to 

 

4

In March 15 and April 12, 2017 CA-17 forms, Dr. Avetian found appellant disabled from work. 
5

determine whether her claim should be expanded to include additional employment-related 

conditions and whether she was capable of performing her usual employment beginning October 1, 

2016 and continuing.

On August 24, 2017 OWCP referred appellant to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In a report dated September 8, 2017, Dr. Askin reviewed the history of injury and the 

medical reports of record. On examination of the right shoulder, he found negative Neer and 

Hawkin’s tests. Dr. Askin further found no laxity and retropatellar crepitus on motion of the knees 

bilaterally. He diagnosed a right shoulder sprain, a right knee strain, and a left knee contusion due 

to the accepted employment injury. Dr. Askin opined that appellant had “age-appropriate 

degenerative changes which are seemingly the true explanation for [appellant’s] current 

complaints, not precipitated by or aggravated by her injury.” He found no disability due to the 

employment injury and opined that her total disability had ceased on the date of his examination, 

September 8, 2017.

In an addendum dated September 15, 2017, Dr. Askin advised that appellant’s claim should 

not be expanded to include additional conditions as her complaints resulted from age-related 

degenerative changes. He noted that based on his review of the record it “would have been 

expected that [appellant] could have resumed her date-of-injury job” as of October 1, 2016. 

By decision dated December 11, 2017, OWCP denied expansion of its acceptance of the

claim to include additional employment-related conditions. It further found that appellant had not 

established entitlement to wage-loss compensation for disability commencing October 1, 2016 and 

continuing.

On December 18, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

On May 11, 2018 Dr. Barr noted that, at the time of his November 18, 2016 evaluation, he 

had obtained a history of a bulk mail container striking appellant on the right side. He discussed 

his prior examination findings and diagnoses. Dr. Barr related:

“Based on the mechanism of injury with [appellant] being struck on the right side 

of her body by a heavy bulk mail container weighing 1600 pounds, this would be 

consistent with the development of a cervical strain. It is also my opinion that the 

mechanism would be consistent with the development of a left knee sprain and 

exacerbation of her degenerative joint disease and a SLAP tear with impingement 

syndrome to her right shoulder as well as the right shoulder sprain.” 

Dr. Barr advised that, within a reasonable degree of medical probability, at the time of his 

September 18, 2016 examination, he had found appellant unable to work.

A hearing was held on May 14, 2018. By decision dated June 14, 2018, OWCP’s hearing 

representative set aside the December 11, 2017 decision. She found that the opinion of Dr. Askin 

was insufficiently rationalized to constitute the weight of the evidence as he had not explained why

appellant’s degenerative changes were not caused or aggravated by the accepted employment 
6

injury, and had failed to specifically address the diagnosed conditions of right shoulder 

impingement syndrome, a right SLAP tear, an exacerbation of left knee patellofemoral syndrome, 

rotator cuff tendinosis with subacromial bursitis, inflammation with underlying osteoarthritis of 

the glenohumeral and AC joints, left knee patellofemoral syndrome, left knee effusion, and a left 

knee ganglion cyst. The hearing representative instructed OWCP, on remand, to provide Dr. Askin 

with additional medical records and request that he clarify appellant’s work capacity, discuss 

whether the additional diagnosed conditions were employment related, and explain whether the 

work injury had caused or aggravated a degenerative condition. 

On July 20, 2018 OWCP requested that Dr. Askin address whether appellant had sustained 

a right shoulder SLAP tear, right shoulder impingement syndrome, rotator cuff tendinosis with 

subacromial bursitis, inflammation with underlying osteoarthritis of the glenohumeral and AC 

joints, an exacerbation of patellofemoral degenerative disc disease, left knee patellofemoral 

syndrome, patellar tendinosis and a ganglion of the left ACL due to her June 13, 2016 employment 

injury. It further requested that he explain whether the work injury had aggravated any 

degenerative conditions and whether she was capable to working without restrictions on or after 

October 1, 2016.

In a supplemental report dated July 25, 2018, Dr. Askin opined that a SLAP tear was a 

common finding in older individuals. He asserted that the SLAP tear demonstrated on MRI scan 

was an incidental finding and referenced medical literature in support of his conclusion. Dr. Askin 

further attributed the patellofemoral arthrosis demonstrated on the MRI scan to appellant’s age. 

He noted that there was no “objectively determinable clinical manifestation of any disturbance” of 

appellant’s underlying degenerative processes as a result of her employment injury. Regarding 

whether she was disabled as of October 1, 2016, Dr. Askin reiterated that he had not performed a 

contemporaneous examination. He advised that it would not have been unsafe for appellant to 

resume work, but that she may have experienced discomfort. Dr. Askin found that she would 

“clearly have been capable of a full range of sedentary employment on a full-time basis again 

respecting the nature of [appellant’s] complaints.” He asserted that none of the additional 

diagnosed conditions were causally related to her June 13, 2016 employment injury and advised 

that the claim did “not require expansion of any condition related to the subject incident.”

By decision dated August 22, 2018, OWCP denied appellant’s request to expand 

acceptance of her claim to include additional conditions causally related to the accepted June 13,

2016 employment injury, and further denied her claim for wage-loss compensation beginning 

October 1, 2016 causally related to her accepted employment injury. 

On August 28, 2018 appellant’s counsel requested an oral hearing before a representative 

of OWCP’s Branch of Hearings and Review. A hearing was held on January 15, 2019. Counsel 

asserted that Dr. Askin had failed to provide a reasoned opinion or respond to the specific questions 

posed. He noted that Dr. Askin cited to medical literature to support that the degenerative findings 

were age related.

By decision dated March 20, 2019, an OWCP hearing representative affirmed the 

August 22, 2018 decision. 
7

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.6 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.7

Under FECA, the term disability means an incapacity because of an employment injury, to 

earn the wages the employee was receiving at the time of the injury.8 For each period of disability 

claimed, the employee has the burden of proof to establish that he or she was disabled from work 

as a result of the accepted employment injury.9 Whether a particular injury causes an employee to 

become disabled from work, and the duration of that disability, are medical issues that must be 

proven by a preponderance of probative and reliable medical opinion evidence.10 For each period 

of disability claimed, the employee has the burden of proof to establish that he or she was disabled 

from work as a result of the accepted employment injury.11

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence. 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

claimed disability and the accepted employment injury.

12

Section 8123(a) of FECA which provides that, if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, OWCP 

shall appoint a third physician (known as a referee physician or impartial medical specialist) who 

shall make an examination.13 This is called a referee examination and OWCP will select a 

 

5 Supra note 3.

6 Y.D., Docket No. 20-0097 (issued August 25, 2020); D.P., Docket No. 18-1439 (issued April 30, 2020); Amelia S. 

Jefferson, 57 ECAB 183 (2005).

7 K.T., Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

8 20 C.F.R. § 10.5(f); see J.T., Docket No. 19-1813 (issued April 14, 2020); Cheryl L. Decavitch, 50 ECAB 

397 (1999).

9

Id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

10 20 C.F.R. § 10.5(f); M.A., Docket No. 19-0905 (issued January 26, 2021); J.M., Docket No. 18-0763 (issued 

April 29, 2020).

11 Id.

12 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996); see also T.T., 

Docket No. 18-1054 (issued April 8, 2020).

13 5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).
8

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.14

ANALYSIS

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

On November 2, 2016 Dr. Avetian opined that appellant had sustained a SLAP tear of the 

right shoulder and a left knee injury when she was struck by a bulk mail container on 

June 13, 2016. In a report dated January 4, 2017, Dr. Avetian and Dr. Vernon diagnosed a right 

shoulder SLAP tear, inflammation with underlying osteoarthritis of the glenohumeral and AC 

joint, and rotator cuff tendinosis with subacromial bursitis. On April 24, 2017 Dr. Avetian 

reviewed appellant’s history of a June 13, 2016 employment injury. He diagnosed a SLAP tear of 

the right shoulder confirmed by MRI scan causally related to the accepted employment injury and 

left knee trauma. Dr. Avetian found positive clinical findings on examination of the left knee and 

noted that appellant’s symptoms were complicated by underlying osteoarthritis. On May 11, 2018

Dr. Barr discussed his November 18, 2016 evaluation of appellant and her history of being struck 

by a bulk mail container. He found that the mechanism of injury was consistent with left knee 

sprain and exacerbation of degenerative joint disease, cervical strain, and a sprain, SLAP tear, and 

impingement syndrome of the right shoulder. Appellant’s treating physicians opined that she was 

disabled from work.

OWCP referred appellant to Dr. Askin for a second opinion examination. In a 

September 8, 2017 report, Dr. Askin diagnosed a right shoulder sprain, right knee sprain, and a 

left knee contusion. He found age-related degenerative changes unrelated to the accepted 

employment injury. On September 15, 2017 Dr. Askin advised that appellant’s claim should not 

be expanded as the additional diagnosed conditions resulted from age-related degenerative 

changes. In a July 25, 2018 supplemental report, he maintained that the SLAP tear on MRI scan 

finding was incidental and that the patellofemoral arthrosis of the knee were age related. Dr. Askin 

found that the additional diagnosed conditions were not employment related. He concluded, 

therefore, that appellant could return to work.

As noted above, if there is a disagreement between an employee’s physician and an OWCP 

referral physician, OWCP will appoint an impartial medical specialist who shall make an 

examination.15 The Board therefore finds that a conflict exists between Dr. Askin and

Drs. Avetian and Barr regarding expansion of appellant’s claim to include additional conditions 

and disability commencing October 1, 2016 causally related to the accepted June 13, 2016 

employment injury.

The case must therefore be remanded to OWCP for referral of appellant to an impartial 

medical specialist for resolution of the conflict in medical opinion evidence in accordance with 5 

 

14 20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

15 See S.S., Docket No. 19-1658 (issued November 12, 2020); C.S., Docket No. 19-0731 (issued August 22, 2019).
9

U.S.C. § 8123(a).16 The issue of whether the acceptance of her claim should be expanded to 

include additional conditions must be resolved prior to determining whether she has met her 

burden of proof to establish that she was disabled from work commencing October 1, 2016

causally related to her accepted June 13, 2016 employment injury. After this and other such further 

development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the March 20, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: February 25, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 S.M., Docket No. 19-0397 (issued August 7, 2019).