United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.D., Appellant

and

U.S. POSTAL SERVICE, MARKET SQUARE, 

Philadelphia, PA, Employer

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Docket No. 19-1924

Issued: November 16, 2020

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On September 17, 2019 appellant, through counsel, filed a timely appeal from an April 8, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of 

the Appellate Boards assigned Docket No. 19-1924.

On February 14, 2014 appellant, then a 39-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured the top of her neck, back, and left knee 

when she slipped on ice and fell down stairs while in the performance of duty. OWCP accepted 

the claim for neck sprain, sprains of the thoracic and lumbar spine, and sprains of the left knee and 

 

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 April 8, 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

leg.3 It paid appellant compensation for total disability from April 2 until October 6, 2014, when 

she resumed full-time modified employment.

By decision dated March 10, 2016, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective that date. By decision dated September 7, 2016, an OWCP hearing 

representative affirmed the March 10, 2016 decision.

Appellant appealed the September 7, 2016 decision to the Board. By decision dated 

April 25, 2017, the Board affirmed in part and set aside in part the September 7, 2016 decision.4 

The Board found that OWCP had properly terminated appellant’s medical benefits effective 

March 10, 2016 as she had no residuals of her February 14, 2014 employment injury.5 The Board 

further found that she had not established continuing employment-related residuals due to her 

accepted conditions after February 14, 2014. The Board determined, however, that the case was 

not in posture for decision regarding whether appellant’s claim should be expanded to include disc 

herniations at C5-6 and L4-5, right L5 radiculopathy, and patellofemoral arthritis caused or 

aggravated by the February 14, 2014 employment injury. 

Following further development, by decision dated September 26, 2018, OWCP expanded 

acceptance of appellant’s claim to include a temporary aggravation of degenerative protruding 

cervical and lumbar disc disease, resolved, and a resolved temporary aggravation of patellofemoral 

arthritis of the left knee. It explained that given the expansion that it would honor medical claims 

through March 10, 2016. 

OWCP subsequently determined that a conflict in medical opinion existed between 

appellant’s treating physician, Dr. Laura E. Ross, an osteopath and Board-certified orthopedic 

surgeon, and Dr. Robert F. Draper, Jr., a Board-certified orthopedic surgeon and OWCP referral 

physician, regarding whether appellant’s claim should be expanded to include additional 

conditions. It prepared an updated statement of accepted facts (SOAF) and referred her to

Dr. Andrew Collier, a Board-certified orthopedic surgeon, for an impartial medical examination. 

In a report dated February 20, 2019, Dr. Collier discussed appellant’s history of a 

February 14, 2014 employment injury. He indicated that she had previously injured her neck, 

lumbar spine, and thoracic spine in a March 2010 motor vehicle accident. Dr. Collier noted that 

appellant had resumed work after the February 14, 2014 employment injury until June 2018, when 

her back and neck symptoms worsened after her vehicle was rear-ended. He opined that appellant 

had sustained a temporary aggravation of her protruding cervical and lumbar disc disease that had 

resolved and back and thoracic strain, also resolved. Dr. Collier asserted that she had not injured 

her knee at the time of her accident. He related, “The mechanism of injury during her fall does 

not fit any that would cause patellofemoral arthritis. She fell backwards, striking her back....”

 

3 OWCP previously accepted that appellant sustained lumbosacral strain due to an October 5, 2004 injury, assigned 

OWCP File No. xxxxxx349. 

4 Docket No. 17-0272 (issued April 25, 2017).

5 The Board noted that appellant was not receiving wage-loss compensation at the time of OWCP’s termination and 

thus it had improperly characterized the decision as a termination of wage-loss compensation. 
3

Dr. Collier noted that appellant currently had symptoms due to her June 2018 motor vehicle 

accident. 

By decision dated April 8, 2019, OWCP denied modification of its September 26, 2018 

decision.

The Board, having duly considered the matter, finds that this case is not in posture for 

decision.

The Board finds that Dr. Collier’s opinion is not entitled to the special weight afforded an 

impartial medical examiner (IME) as he failed to accept the facts as presented in the SOAF in 

rending his opinion. In a February 20, 2019 report, he diagnosed as employment-related a resolved 

temporary aggravation of protruding cervical and lumbar disc disease and resolved lumbar and 

thoracic strain. Additionally, he found that appellant had not sustained a knee injury due to her 

February 14, 2014 employment injury based on the mechanism of her fall. The SOAF, however, 

set forth OWCP’s acceptance of left knee and leg sprain and a resolved temporary aggravation of 

left knee patellofemoral arthritis as causally related to the accepted employment injury. 

OWCP’s procedures and Board precedent dictate that when an OWCP medical adviser, 

second opinion specialist, or referee physician renders a medical opinion based on a SOAF which 

is incomplete or inaccurate or does not use the SOAF as the framework in forming his or her 

opinion, the probative value of the opinion is seriously diminished or negated altogether.6 The 

Board has explained that the report of an IME who disregards a critical element of the SOAF and 

disagrees with the medical basis for acceptance of a condition is defective and insufficient to 

resolve the existing conflict of medical opinion evidence.7 Dr. Collier’s report is of diminished 

probative value as his opinion did not rely on the SOAF and it contradicted critical elements of the 

SOAF. The Board notes that it is the function of a medical expert to give an opinion only on 

medical questions, not to find facts.8 As Dr. Collier failed to rely on the SOAF, his report is not 

based on an accurate history.9 His opinion is thus insufficient to resolve the existing conflict in 

medical opinion evidence.10

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 IME’s opinion requires clarification or 

 

6 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). See also D.E., Docket No. 17-1794 (issued April 13, 2018); K.V., Docket No. 15-0960 (issued 

March 9, 2016); Paul King, 54 ECAB 356 (2003).

7 M.D., Docket No. 18-0468 (issued September 4, 2018).

8

Id.

9 V.K., Docket No. 19-0422 (issued June 10, 2020); Douglas M. McQuaid, 52 ECAB 382 (2001).

10 V.K., id.
4

elaboration, it must secure a supplemental report to correct the defect in his or her original report.11 

Upon return of the case record, OWCP should obtain a supplemental report from Dr. Collier 

clarifying whether appellant sustained additional conditions due to her accepted employment 

injury. If the IME is unable to clarify or elaborate on his original report, or if the supplemental 

report is also vague, speculative, or lacking in rationale, OWCP must submit the case record and 

a detailed SOAF to another IME for the purpose of obtaining a rationalized medical opinion on 

the issue.12 Following this and other such further development as deemed necessary, OWCP shall 

issue a de novo decision.13

IT IS HEREBY ORDERED THAT the April 8, 2019 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: November 16, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

11 R.O., Docket No. 19-0885 (issued November 4, 2019); Talmadge Miller, 47 ECAB 673 (1996); see also supra

note 6 at Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter 2.810.11(c)(1)-(2) 

(September 2010). 

12 Id.

13 V.K., supra note 9.