United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer

__________________________________________

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Docket No. 20-0211

Issued: November 5, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 4, 2019 appellant, through counsel, filed a timely appeal from a 

September 26, 2019 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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish continuing, 

employment-related residuals or disability on or after May 13, 2016; and (2) whether appellant has 

 

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

met her burden of proof to expand the acceptance of her claim to include additional conditions 

causally related to the accepted June 5, 1989 employment injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

follows.

On June 5, 1989 appellant, then a 29-year-old casual clerk,4filed a traumatic injury claim 

(Form CA-1) alleging that, on that same date, she experienced pain in her back, arm, and shoulder 

when she bent down to pick up and carry a tray full of mail while in the performance of duty. She 

stopped work on that date. OWCP accepted appellant’s claim for cervical, thoracic, lumbar, and 

right shoulder strains. It paid wage-loss compensation and medical benefits and placed her on the 

periodic rolls, effective December 18, 1989.

In November 21, 1990, appellant began vocational rehabilitation and returned to modifiedduty work as a part-time mail sorter at a private company on August 27, 1991. She received wageloss compensation for partial disability. By decision dated October 3, 1991, OWCP issued a loss 

of wage-earning capacity (LWEC) determination reducing appellant’s wage-loss compensation 

based on her actual earnings in the position of part-time mail sorter.

On May 22, 2014 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Richard Deerhake, a Boardcertified orthopedic surgeon, for a second opinion evaluation regarding the status of her accepted 

June 5, 1989 employment injury. In a June 23, 2014 report, Dr. Deerhake noted that he had 

reviewed the SOAF and discussed the medical record. He provided physical examination findings

and reported that appellant’s current diagnoses were right shoulder arthritis and degenerative disc 

disease of the cervical spine. Dr. Deerhake explained that appellant’s current conditions were not 

work related and were a result of age-related changes. He concluded that appellant no longer 

suffered from residuals or disability due to her June 5, 1989 employment injury.

Appellant submitted progress notes dated January 14 to November 11, 2015 by Dr. Louis J. 

DeMicco, an osteopath specializing in emergency medicine. Dr. DeMicco recounted her 

complaints of worsening right shoulder and lower back pain. Upon physical examination, he

observed pain on palpation over the cervical spine and some pain in the lumbar midline and 

paraspinal musculature. Dr. DeMicco diagnosed cervical, lumbar, and right shoulder strains.

OWCP determined that a conflict in medical opinion existed between Dr. DeMicco, 

appellant’s treating physician, and Dr. Deerhake, OWCP’s second opinion physician, with respect 

to her employment-related conditions and disability. It referred appellant to Dr. Mark Berkowitz, 

 

3 Docket No. 17-1352 (issued August 13, 2018).

4 Appellant’s term appointment with the employing establishment ended on June 7, 1989. 
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a Board-certified orthopedic surgeon, for an impartial medical examination in order to resolve the 

conflict.

In a February 3, 2016 report, Dr. Berkowitz indicated that he had reviewed the case record, 

including the SOAF, and noted the accepted conditions of cervical, thoracic, lumbar, and right 

shoulder sprains. Upon examination of appellant’s cervical and lumbar spines, he observed mild 

tenderness to palpation and no spasms. Sensation was intact. Examination of appellant’s thoracic 

spine revealed no tenderness, spasms, or guarding. Dr. Berkowitz also noted range of motion 

findings. Upon examination of appellant’s right shoulder, he observed no evidence of tenderness, 

muscle spasms, or guarding. Dr. Berkowitz opined that there were no objective findings to support 

that appellant had residuals of her accepted cervical, thoracic, lumbar, and right shoulder sprain 

injuries. He explained that, while appellant still had many subjective findings, those findings were 

more likely due to subsequent injuries that occurred after her federal employment. Dr. Berkowitz 

reported that appellant was not able to return to regular duty, but indicated that her work 

restrictions resulted from her other subsequent injuries and natural degenerative changes. He 

completed a work capacity evaluation (Form OWCP-5c) with appellant’s work restrictions.

On April 8, 2016 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits because her June 5, 1989 work-related injury and disability had resolved. It found 

that the special weight of the medical evidence rested with Dr. Berkowitz’s February 3, 2016 

report, in which he determined that appellant’s accepted injuries had ceased and that she was no

longer totally disabled as a result of her accepted injury. OWCP afforded appellant 30 days to 

submit additional evidence or argument, in writing, if she disagreed with the proposed termination. 

No additional evidence or argument was received.

By decision dated May 13, 2016, OWCP finalized the termination of appellant’s wage-loss 

compensation and medical benefits, effective that same date. It found that the special weight of 

the medical evidence rested with Dr. Berkowitz, the impartial medical examiner (IME), who had 

determined in a February 3, 2016 report that appellant did not have residuals or disability due to 

her June 5, 1989 employment injury.

On May 23, 2016 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review. Appellant submitted additional 

progress notes dated March 25 and May 25, 2016 by Dr. DeMicco who continued to treat appellant 

for complaints of neck and lower back pain.

OWCP also received a June 13, 2016 impairment rating report by Dr. Catherine Watkins 

Campbell, a Board-certified occupational and family medicine physician.

A hearing was held on February 13, 2017. By decision dated April 13, 2017, an OWCP 

hearing representative affirmed the May 13, 2016 decision. 

Appellant filed an appeal before the Board.

By decision dated August 13, 2018, the Board affirmed the April 13, 2017 decision. The 

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

compensation and medical benefits, effective May 13, 2016, as the medical evidence of record was 

insufficient to establish that she continued to suffer from residuals or disability causally related to 
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her accepted June 5, 1989 employment injury. The Board further found that the medical evidence 

submitted after the May 13, 2016 termination decision was insufficient to establish continuing 

residuals or disability due to the June 5, 1989 employment injury.

Following the Board’s August 13, 2018 decision, OWCP received an April 19, 2019 letter 

from counsel requesting that appellant’s claim be expanded to include the additional conditions of 

status post cervical spinal fusion, spinal stenosis of the cervical region, and right shoulder 

tendinitis. Counsel noted that he was submitting additional medical documentation from

Dr. Michael Eppig, a Board-certified orthopedic surgeon, to support his request.

In progress notes dated November 20, 2017 to December 19, 2018, Dr. Eppig recounted 

appellant’s complaints of worsening neck pain and bilateral hand numbness and tingling. Upon 

initial examination, he observed normal range of motion of appellant’s cervical spine and normal 

strength. Hoffman’s test was negative. Dr. Eppig diagnosed status post cervical spinal fusion, 

cervical radiculopathy, cervical spinal stenosis, and herniated nucleus pulposus (HNP).

A December 13, 2018 cervical spine magnetic resonance imaging (MRI) scan revealed 

severe left-sided neural foraminal narrowing at the C6-7 level related to facet hypertrophy.

On July 11, 2019 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence.

A referral note dated January 17, 2019 from Dr. Vladlen Kim, Board-certified in internal 

medicine, to Dr. Eppig noted the diagnoses of cervical degenerative disc disease, cervical 

radiculopathy, and lumbar pain.

In a March 12, 2019 report, Dr. Kim indicated that appellant was seen for diarrhea due to 

malabsorption, sprain of thoracic region, lumbar sprain, postgastrectomy syndrome, chronic 

gastroesophageal reflux disease (GERD), generalized abdominal pain, and chronic insomnia. He 

prescribed medication and scheduled a follow-up examination.

Appellant also submitted a March 19, 2019 cervical spine computerized tomography (CT)

scan, which revealed straightening of the cervical lordosis with preserved vertebral alignment, 

postoperative changes of the anterior cervical disc fusion at C5-6, normal paraspinal soft tissues, 

degenerative changes at C6-7, small central disc protrusion at C2-3 and C3-4, and small disc 

osteophyte complex at C6-7.

In progress notes dated April 10 and July 17, 2019, Dr. Eppig recounted appellant’s 

complaints of mid-cervical, posterior neck pain, bilateral hand numbness/tingling, and right 

shoulder pain. Upon examination of appellant’s cervical spine, he observed normal range of 

motion, no atrophy or edema, and negative Hoffman’s test. Dr. Eppig diagnosed subluxation of 

cervical vertebra and cervical spinal stenosis.

By decision dated September 26, 2019, OWCP denied modification. It found that the 

medical evidence of record was insufficient to establish that appellant continued to suffer residuals 

or disability causally related to her accepted June 5, 1989 employment injury. OWCP also 
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determined that the medical evidence of record was insufficient to establish additional cervical and 

right shoulder conditions causally related to her accepted June 5, 1989 employment injury.

LEGAL PRECEDENT -- ISSUE 1

As OWCP properly terminated appellant’s compensation benefits, the burden shifts to her 

to establish continuing disability or residuals, after that date, causally related to her accepted 

injury.5 To establish a causal relationship between the condition as well as any attendant disability 

claimed and the employment injury, an employee must submit rationalized medical evidence based 

on a complete medical and factual background, supporting such a causal relationship.6 A claimant

must establish by the weight of the reliable, probative, and substantial evidence that he or she had 

employment-related residuals or disability which continued after termination of compensation 

benefits.7

ANALYSIS -- ISSUE 1 

The Board finds that appellant has not met her burden of proof to establish continuing 

residuals or disability causally related to her June 5, 1989 employment injury on or after 

May 13, 2016.

On prior appeal, the Board found that OWCP properly terminated appellant’s wage-loss 

compensation and medical benefits because she did not have residuals or disability due to her 

accepted June 5, 1989 employment injury. The Board further found that the medical evidence 

submitted after the May 13, 2016 termination decision was insufficient to establish continuing 

residuals or disability due to the June 5, 1989 employment injury.8 The Board notes that it is 

unnecessary for the Board to consider the evidence that was previously considered in its 

August 13, 2018 decision. Findings made in prior Board decisions are res judicata, absent any 

further review by OWCP under section 8128 of FECA.9

Following the Board’s August 13, 2018 decision, appellant, through counsel requested 

reconsideration and submitted additional medical evidence. In a March 12, 2019 report, Dr. Kim 

indicated that appellant received medical treatment for thoracic and lumbar sprains. He did not, 

however, address whether appellant was disabled from employment or required further medical 

treatment due to her accepted June 5, 1989 employment injury, and thus, his opinion is of no 

probative value.10 

 

5 See S.M., Docket No. 18-0673 (issued January 25, 2019); Manuel Gill, 52 ECAB 282 (2001).

6 C.L., Docket No. 18-1379 (issued February 3, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

7 V.G., Docket No. 17-0583 (issued July 23, 2018).

8 Supra note 3.

9 C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

10 L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
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Likewise, Dr. Eppig’s progress notes dated November 20, 2017 to July 17, 2019 are also 

of no probative value to establish appellant’s entitlement to continued medical benefits or wageloss compensation as he did not address the relevant issue of whether appellant had continued 

residuals of her work-related cervical, thoracic, lumbar, or right shoulder injuries.11

OWCP also received a December 13, 2018 cervical spine MRI scan and a March 19, 2019 

cervical spine CT scan. The Board has held that diagnostic tests standing alone lack probative 

value as they do not provide the physician’s opinion on causal relationship.12

Dr. Kim’s January 17, 2019 referral note does not contain a physician’s opinion regarding 

continuing disability. Therefore, it is of no probative value and insufficient to establish continuing 

disability.

13

As appellant has not provided rationalized medical evidence establishing continued 

residuals or disability on or after May 13, 2016 due to her accepted June 5, 1989 employment 

injury, the Board finds that she has not met her burden of proof.14

LEGAL PRECEDENT -- ISSUE 2

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.15

The medical evidence required to establish causal relationship between a specific 

condition, as well as any attendant disability claimed, and the employment injury, is rationalized 

medical opinion evidence.16 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.17 Additionally, the opinion of the physician must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and the

accepted employment injury.

18

 

11 Id. 

12 See Docket No. 18-0559 (issued January 29, 2020).

13 Id. 

14 See C.C., Docket No. 19-1062 (issued February 6, 2020).

15 W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., Docket No. 12-0599 (issued October 2, 2012); 

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

16 T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 

465 (2004).

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

18 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 

ECAB 345 (1989).
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ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to expand the acceptance 

of her claim to include additional conditions causally related to the accepted June 5, 1989 

employment injury.

In support of her claim, appellant submitted a series of progress notes by Dr. Eppig dated 

November 20, 2017 to July 17, 2019. In the initial examination report, Dr. Eppig recounted 

appellant’s complaints of neck pain and bilateral hand numbness and tingling. He conducted an 

examination and diagnosed status post cervical spinal fusion, cervical radiculopathy, cervical 

spinal stenosis, and HNP. Dr. Eppig did not, however, address the cause of appellant’s additional 

cervical or lumbar conditions. Medical evidence that does not offer an opinion regarding the cause 

of an employee’s condition is of no probative value on the issue of causal relationship.19 Appellant 

was also treated by Dr. Kim who likewise did not specifically address how appellant’s diagnosed 

conditions resulted from the accepted June 5, 1989 employment injury. Thus, Dr. Kim’s reports 

are insufficient to establish any additional conditions as employment related.20

The December 13, 2018 cervical spine MRI scan and March 19, 2019 cervical spine CT 

scan are also insufficient to establish appellant’s claim. The Board has held that diagnostic studies 

standing alone lack probative value on the issue of causal relationship as they do not address 

whether the accepted employment injury caused any of the additional diagnosed conditions.21

As the medical evidence of record is insufficient to establish causal relationship between 

the diagnosed conditions and the accepted employment injury, the Board finds that appellant has 

not met her burden of proof. 

On appeal counsel contends that OWCP failed to adjudicate the claim in accordance with 

the proper standard of causation and failed to give due deference to the findings of the attending 

physician. As explained above, however, the medical evidence of record is insufficient to establish 

appellant’s claim for expansion. Thus, the Board finds that appellant has not met her burden of 

proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish continuing 

residuals or disability on or after May 13, 2016 causally related to her June 5, 1989 employment 

injury. The Board also finds that appellant has not met her burden of proof to expand the 

 

19 See B.P., Docket No. 19-0777 (issued October 8, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

20 See G.V., Docket No. 20-0055 (issued April 21, 2020).

21 F.D., Docket No. 19-0932 (issued October 3, 2019); J.S., Docket No. 17-1039 (issued October 6, 2017).
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acceptance of her claim to include additional conditions causally related to the accepted June 5, 

1989 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the September 26, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 5, 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