United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SAFETY 

ADMINISTRATION, JOHN F. KENNEDY

INTERNATIONAL AIRPORT, Jamaica, NY, 

Employer

__________________________________________

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Docket No. 20-0822

Issued: August 2, 2022

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 3, 2020 appellant, through counsel, filed a timely appeal from an October 11, 

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 October 11, 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 his burden of proof to establish total disability from 

work for the period September 18, 2016 to June 24, 2017 causally related to his accepted July 9, 

2016 employment injuries.

FACTUAL HISTORY

On July 9, 2016 appellant then a 41-year-old transportation security officer (screener), filed 

a traumatic injury claim (Form CA-1) alleging on that date he felt a pop and injured his left 

shoulder pulling a checked bag off of the screening table while in the performance of duty. He 

stopped work on July 9, 2016. On July 16, 2016 appellant accepted a light-duty assignment with 

restrictions for no lifting. He subsequently accepted a full-time light-duty assignment on August 8, 

2016 with no reaching above the shoulder, no pushing, and no lifting, effective July 12, 2016.

4

 On 

August 31, 2016 OWCP accepted appellant’s claim for left shoulder acromioclavicular (AC) joint 

strain.

Appellant’s attending physician, Dr. Sivaram Rajan, a Board-certified orthopedic surgeon, 

found on August 17, 2016 that appellant was unable to return to work and noted that he was 

scheduled for left shoulder surgery on September 9, 2016.

On September 6, 2016 appellant advised OWCP that he had not returned to work. In a 

letter of even date, Dr. Rajan noted his history of injury and recommended surgery. He also 

completed an attending physician’s report (Form CA-20) and diagnosed labral tear, instability and 

rotator cuff syndrome. Dr. Rajan found appellant totally disabled beginning July 9, 2016 and 

“ongoing.” He completed a note on September 23, 2016 and recommended that he remain out of 

work until his surgery.

Beginning on October 7, 2016, appellant completed claimsfor compensation (Form CA_7) 

for disability from work for the period September 18, 2016 through June 24, 2017.

5

By decision dated October 17, 2016, OWCP denied the expansion of the acceptance of

claim to include the additional conditions of left shoulder rotator cuff syndrome, AC joint arthritis, 

impingement syndrome of the left shoulder and left shoulder superior and anterior labral tears. 

Appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch 

of Hearings and Review on November 10, 2016.

3

5 U.S.C. § 8101 et seq.

4 The Board notes that the light-duty assignment did not otherwise specify appellant’s light duties or requirements 

as the employing establishment manager did not select any of the listed duties. 

5 The employing establishment indicated that appellant used intermittent leave from July 11 through 

August 13, 2016. Appellantreceived continuation of pay (COP) for the periods July 25 to 31, 2016 and August 21 to 

September 17, 2016.
3

In October 18 and 20, 2016 development letters, OWCP requested additional medical 

evidence from appellant to establish disability from work commencing September 18, 2016. It 

afforded him 30 days to submit the requested information.

On October 18, 2016 OWCP denied appellant’s request for left shoulder arthroscopy to 

repair a torn labrum.

By decision dated November 28, 2016, OWCP denied appellant’s claim for compensation 

for disability, commencing September 18, 2016. On December 8, 2016 appellant, through 

counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and 

Review.

In a February 17, 2017 report, Dr. Rajan found that,following his July 9, 2016 work injury,

appellant was unable to return to his regular-duty work activities of lifting heavy bags in a 

repetitive manner and further, that he would not be able to perform this duty until he had surgical 

stabilization of his left shoulder. He concluded that he was completely disabled from the injury to 

the present with respect to his job requirements.

In April 24 and May 12, 2017 reports, Dr. Michael A. Meese, a Board-certified orthopedic 

surgeon, examined appellant due to his left shoulder injury and noted that he had not been working 

since his July 9, 2016 employment injury as a result of the pain, popping, and clicking inside his 

left shoulder. He found that he had experienced chronic symptoms that limited his ability to 

function with daily, recreational, and occupational activities.

Following an oral hearing on February 28, 2017, by decision dated May 24, 2017, OWCP’s 

hearing representative reversed the October 17, 2016 decision and directed OWCP to expand the 

accepted of appellant’s claim to include left shoulder impingement, as well as anterior and superior 

labral tears and to pay the appropriate medical benefits. She further vacated the November 28, 

2016 decision and remanded the case for additional development regarding the issue of disability,

including a second opinion evaluation and a de novo decision on this issue.

On May 25, 2017 OWCP expanded the acceptance of the claim to include impingement 

syndrome of the left shoulder and superior glenoid labrum lesion of the left shoulder.

In a June 1, 2017 development letter, OWCP requested that appellant provide additional 

medical evidence addressing his claim for total disability from work. It afforded him 30 days for 

response.

Dr. Rajan completed a note on April 19, 2017 and found that appellant could return to work 

performing sedentary duties only.

On June 9, 2017 the employing establishment provided a copy of appellant’s position 

description, which included the requirement that he repeatedly lift and carry items weighing up to 

70 pounds, that he maintain physical agility to squat, bend, and inspect baggage/cargo, and

maintain the ability to walk up to two miles during a shift, and stand for three or four hours at a 

time.

In a June 13, 2017 narrative statement, appellant related that he had not received any 

compensation benefits since his employment injury. He noted that he received COP and that he 

returned to limited duty on July 12, 2016. Appellant asserted that he was not provided a job offer, 
4

but was advised to perform “no lifting” and returned to his regular job. He noted that Dr. Rajan 

took him off work, but asserted that he did not receive a formal light-duty job offer. Appellant 

provided a copy of a July 9, 2016 limited-duty assignment, effective on July 12, 2016, with a 

handwritten comment that he was a baggage officer and that the duties assigned were for a check 

point screening position.

On June 20, 2017 appellant alleged that his physicians refused to provide more medical 

evidence. He asked that OWCP advise him on how to obtain more medical evidence. Appellant 

asserted that he had returned to work on limited-duty status, but performing his same job function. 

He alleged that his shoulder condition worsened and that his physician took him off work pending 

surgery.

In a June 22, 2017 development letter, OWCP requested that appellant provide medical 

evidence establishing total disability from work during the entire period claim. It afforded him 30 

days for a response.

On June 29, 2017 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

list of questions to Dr. Timothy Henderson, a Board-certified orthopedic surgeon, for a second 

opinion evaluation.

Appellant underwent left shoulder arthroscopy on June 27, 2017.6

In a July 19, 2017 report, Dr. Henderson noted appellant’s history of injury and accepted 

employment injuries. He noted that he stopped work on July 9, 2016, his date of injury, returned 

to full-time light-duty work from July 12 through August 17, 2016 and stopped working on 

August 17, 2016. Dr. Henderson advised that he was unable to examine appellant’s left shoulder 

as any meaningful physical examination could disrupt the repair and destroy the surgical work

performed on June 27, 2017. In response to OWCP’s question of whether appellant was capable 

of performing his full-time limited-duty assignment beginning August 17, 2016, Dr. Henderson 

opined that he was not totally disabled and was able to work with lifting restrictions of 10 pounds 

in a sedentary position. He noted that appellant was currently totally disabled.

By decision dated August 4, 2017, OWCP denied appellant’s claims for compensation for 

the period September 18, 2016 through June 24, 2017. It found that Dr. Meese’s May 12, 2017 

report lacked sufficient medical rationale to establish that he was totally disabled from work during 

the claimed period and further found that he had not reviewed the physical requirements for the 

limited-duty position. OWCP found that, based on the opinion of Dr. Henderson, following a 

thorough review of the file, that appellant was not totally disabled for the claimed period as he was 

capable of performing a sedentary position with a lifting restriction of 10 pounds. On August 15, 

2017 appellant, through counsel, requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

OWCP referred appellant for an additional second opinion examination with

Dr. Henderson on October 5, 2017 to address his physical condition and disability following his 

recovery from surgery. In his October 25, 2017 report, Dr. Henderson found that he continued to 

experience medical residuals of his accepted conditions. He opined that appellant could currently 

6 OWCP authorized wage-loss compensation beginning June 27, 2017.
5

perform full-time sedentary work utilizing only his right upper extremity.7 On the accompanying 

work capacity evaluation (Form OWCP-5c) Dr. Henderson indicated that he could sit, walk, and 

stand for eight hours a day, but could not reach or reach above the shoulder. He further restricted 

appellant’s pushing, pulling, and lifting to 10 pounds.

Appellant testified before an OWCP hearing representative on January 17, 2018 and 

described the July 9, 2016 employment injury. He noted that, after he searched a bag, he pulled it 

off the table and felt a pop in his left shoulder. Appellant returned to full duty on July 9 through 12, 

2016 and began working limited duty on July 12, 2016. He asserted that his limited-duty 

assignment included restrictions on pulling and lifting. Appellant continued to operate the x -ray 

machine and perform bag searches on 30-minute rotations. He noted that his regular duties also 

included carrying bags weighing up to 70 pounds. Appellant further alleged that his limited-duty 

position required him to use the x-ray machine, which entailing swiping and pulling 5 to 10 bags 

during a 30-minute rotation. He disputed that his limited-duty position was sedentary. Appellant 

noted that Dr. Rajan found that he was totally disabled on August 17, 2016. Counsel contended 

that his limited-duty position was not sedentary and that the position, therefore, violated

Dr. Henderson’s work restrictions for the period beginning September 18, 2016, which included 

no use of the left arm. He noted that the limited-duty position required up to eight hours of reaching 

up to shoulder height and eight hours repetitive movements of the left shoulder.

On February 26, 2018 OWCP requested a supplemental report from Dr. Henderson 

addressing appellant’s current work restrictions and whether he was limited to a full-time sedentary 

position or if he could sit, stand, and walk for eight hours a day. It required medical rationale to 

support his conclusions.

In a March 2, 2018 supplemental report to Dr. Henderson’s October 24, 2017 report,

Dr. Andrew Farber, an osteopath specializing in orthopedic surgery, reviewed Dr. Henderson’s 

report and found that appellant could return to work in a sedentary position only utilizing his right 

upper extremity. Dr. Faber opined that he could work eight hours a day with no restrictions on 

sitting, but walking and standing each for two hours a day.

In a March 9, 2018 letter, the employing establishment reported that appellant had been off 

work since September 16, 2016.

By decision dated April 2, 2018, OWCP’s hearing representative vacated the August 4, 

2017 OWCP decision regarding appellant’s disability from work for the period September 18,

2016 through June 24, 2017 and remanded the case for a supplemental report from Dr. Henderson 

or a new second opinion evaluation addressing his work restrictions during this period.

On May 11, 2018 OWCP referred appellant, a SOAF, and a list of questions to Dr. Jeffrey 

Lakin, a Board-certified orthopedic surgeon for a second opinion evaluation.

Appellant underwent electrodiagnostic studies on May 16, 2018, which were most 

consistent with bilateral C6 radiculopathy due to underlying cervical stenosis at C5-6.

7 Dr. Henderson did not address appellant’s disability from work for the period September 18, 2016 through

June 24, 2017 in this report.
6

In his June 22, 2018 report, Dr. Lakin reviewed appellant’s history of injury and medical 

treatment. He listed his accepted conditions of left shoulder AC joint strain, impingement 

syndrome of the left shoulder, and superior glenoid labral lesion of the left shoulder as well as a 

diagnoses of aggravation of glenohumeral arthritis. Dr. Lakin opined that appellant’s accepted 

conditions were not causing objective symptoms, but that he had some residual pain, stiffness, and 

decreased strength in the left shoulder, which he attributed to preexisting glenohumeral 

osteoarthritis aggravated by the July 9, 2016 work injury. OWCP requested that Dr. Lakin address

appellant’s work capacities, beginning August 17, 2016, and his capacity to perform the light-duty 

position at that time. Dr. Lakin responded by indicating that, at the time of this report, appellant 

was capable of returning to work with restrictions on lifting over 50 pounds more than four hours 

a day, limiting reaching over the shoulder to no more than four hours per day and climbing for 

four hours a day.

In a July 12, 2018 development letter, OWCP requested appellant provide additional 

medical evidence addressing the causal relationship between the conditions of cervical disc 

herniation, cervical radiculopathy, cervicalgia, and cervical lordosis and the accepted July 9, 2016 

employment injury. It afforded him 30 days for a response.

On August 7, 2018 OWCP further expanded the acceptance of appellant’s claim to include 

aggravation of osteoarthritis glenohumeral joint left shoulder.

By decision dated August 14, 2018, OWCP denied appellant’s claim for the additional 

conditions of cervical disc herniation, cervical radiculopathy, cervicalgia, and cervical lordosis as 

causally related to his July 9, 2016 employment injury.

On August 15, 2018 OWCP requested a supplemental report from Dr. Lakin reviewing the 

August 8, 2016 limited-duty job offer and opining whether appellant was physically capable of 

performing these duties up until his June 27, 2017 surgery. It further requested that he provide 

medical rationale in support of his opinion.

In a September 7, 2018 supplemental report, Dr. Lakin reviewed the limited-duty job offer 

and listed appellant’s accepted conditions. He concluded, “Based on this diagnosis with the 

limited-duty assignment involving no reaching above the shoulder, no pushing, and no lifting, 

there is no reason why he cannot accomplish this limited-duty job from the date of the offer from 

August 8, 2016, up to his surgery on June 27, 2017.”

By decision dated March 20, 2019, OWCP denied appellant’s claim for total disability 

from work for the period September 18, 2016 through June 24, 2017. On March 28, 2019 

appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch 

of Hearings and Review.

On July 17, 2019 appellant testified before a hearing representative describing his date-ofinjury work duties and his July 9, 2016 employment injury. He noted that he continued working 

after July 9, 2016 performing his regular job duties including screening bags and operating x-ray 

machines with restrictions of no lifting or pulling. Appellant alleged that he was assisted when he 

performed bag checks. He received a limited-duty job offer on August 8, 2016, which required 

him to continue to his full duties with restrictions. Appellant stopped work on August 17, 2016 

based on Dr. Rajan’s recommendation and due to tingling and numbness in his left shoulder with 

extreme pain. He drew a distinction between his normal work with restrictions and a limited-duty 
7

position such as a desk job. Counsel contended that the limited-duty job offer did not meet the 

requirement to be a proper job offer and, therefore, its availability did not affect appellant’s 

entitlement to wage-loss benefits during the period in question. He noted that, while appellant was 

restricted from reaching above the shoulder, pushing, and pulling, many of the actual duties 

required these activities.

By decision dated October 11, 2019, OWCP’s hearing representative found that appellant 

had not established disability from work for the period September 18, 2016 to June 24, 2017 due 

to his accepted employment injury.

LEGAL PRECEDENT

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

essential elements of his or her claim including that any disability or specific condition for which 

compensation is claimed is causally related to the employment 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 

which must be proven by the preponderance of the reliable, probative, and substantial medical 

evidence.10

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

to earn the wages that the employee was receiving at the time of injury.

11

 Disability is, thus, not 

synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages. An employee who has a physical impairment causally related to a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time 

of injury, has no disability as that term is used in FECA.12

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical evidence.13 Rationalized medical evidence is medical evidence 

which includes a physician’s detailed medical opinion on the issue of whether there is a causal 

relationship between the claimant’s claimed disability and the accepted employment injury. 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 

8

See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020); 

F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

9

Id.; WilliamA. Archer, 55 ECAB 674 (2004).

10 20 C.F.R. § 10.5(f); D.N., Docket No. 19-1344 (issued November 6, 2020); B.O., Docket No. 19-0392 (issued 

July 12, 2019); N.M., Docket No. 18-0939 (issued December 6, 2018); FereidoonKharabi, 52 ECAB 291, 292 (2001).

11 Id. at § 10.5(f); B.K.,Docket No. 18-0386 (issued September 14, 2018); S.M., 58 ECAB 166 (2006); BobbieF. 

Cowart, 55 ECAB 746 (2004).

12 Id.

13 D.N., supra note 10; J.M.,Docket No. 19-0478 (issued August9, 2019).
8

explaining the nature of the relationship between the diagnosed condition and the claimed period 

of disability.14

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.15

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

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical examiner (IME)) who 

shall make an examination.16 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.17 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.18

ANALYSIS

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

Dr. Rajan provided reports dated August 17, 2016 through February 17, 2017, finding that 

appellant was totally disabled from work as he was unable to return to his regular-duty work 

activities of lifting heavy bags in a repetitive manner. He completed a note on April 19, 2017 and 

found that appellant could return to work performing sedentary duties only. In April 24 and 

May 12, 2017 reports, Dr. Meese found appellant disabled as a result of the pain, popping, and 

clicking inside his left shoulder. He further found that his chronic symptoms limited his ability to 

function with daily, recreational and occupational activities. 

Dr. Henderson, a second opinion physician, opined on July 19, 2017 that appellant was 

restricted to working in a sedentary position with lifting no more than 10 pounds. On September 7, 

2018 Dr. Lakin, a second opinion physician, found that, based on the accepted diagnoses and 

restrictions involving no reaching above the shoulder, no pushing, and no lifting, he could perform

a limited-duty job from August 8, 2016, up to his surgery on June 27, 2017.

14 D.N., supra note 10; R.H.,Docket No. 18-1382 (issued February 14, 2019).

15 M.A.,Docket No. 20-0033 (issued May 11, 2020); A.W.,Docket No. 18-0589 (issued May 14, 2019); Fereidoon 

Kharabi, supra note 10.

16 5 U.S.C. § 8123(a); K.C., Docket No. 19-0137 (issued May 29, 2020); M.W., Docket No. 19-1347 (issued 

December 5, 2019); C.T.,Docket No. 19-0508 (issued September 5, 2019); R.S.,Docket No. 10-1704 (issued May13, 

2011); S.T.,Docket No. 08-1675 (issued May 4, 2009).

17 20 C.F.R. § 10.321.

18 K.C., supra note 16; M.W., supra note 16; C.T., supra note 16; Darlene R. Kennedy, 57 ECAB 414 (2006); 

Gloria J. Godfrey, 52 ECAB 486 (2001).
9

The Board finds that there is an unresolved conflict of medical opinion between Drs. Rajan 

and Meese, for appellant, and Drs. Henderson and Lakin, for the government, regarding the extent 

of appellant’s disability for work on and after September 18, 2016. 

OWCP’s regulations provide 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. 19 The Board will,

thus, remand the case to OWCP for referral to an IME regarding whether appellant has met his 

burden of proof to establish disability for work on and after September 18, 2016.20 Following this 

and any such further development as may be deemed necessary, OWCP shall issue a de novo

decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the October 11, 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: August 2, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

19 5 U.S.C. § 8123(a); K.C.,supranote 16; M.W., supra note 16.

20 Id.