United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA 

NY HARBOR HEALTHCARE SYSTEM,

New York, NY, Employer

__________________________________________

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Docket No. 19-1501

Issued: February 23, 2021

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 3, 2019 appellant, through counsel, filed a timely appeal from a May 30, 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.3

 

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.

3 The Board notes that, following the May 30, 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 evidence for 

the first time on appeal. Id.
ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation, effective May 30, 2018, as she no longer had disability causally related to her 

accepted employment injuries; and (2) whether appellant has met her burden of proof to establish 

continuing disability due to the accepted conditions after May 30, 2018.

FACTUAL HISTORY

On November 23, 2009 appellant, then a 53-year-old social worker, filed a traumatic injury 

claim (Form CA-1) alleging that on November 18, 2009 she was attacked by a patient that shoved 

her in her back and hit her twice with a door while in the performance of duty. She alleged that 

she injured her right side, shoulder, back, calf, and foot. On January 21, 2010 OWCP accepted 

appellant’s claim for neck and lumbar back sprain, and right shoulder contusion. On May 27, 2010 

it expanded acceptance of her claim to include post-traumatic stress disorder (PTSD). On July 14, 

2010 OWCP again expanded acceptance of appellant’s claim to include lumbar disc displacement. 

On June 11, 2014 it expanded acceptance of her claim to include rotator cuff syndrome of the right 

shoulder and allied disorders.

In an attending psychologist’s report dated October 13, 2010, Dr. C. Edward Robins, a 

licensed clinical psychologist, found appellant to be totally disabled through October 6, 2010 due 

to PTSD. Dr. Debra H. Goldman, a licensed clinical psychologist, found her totally disabled from

work due to her accepted PTSD through October 19, 2010.

On December 8, 2010 OWCP referred appellant for a second opinion evaluation with

Dr. Solomon Miskin, a Board-certified psychiatrist. In a January 5, 2011 report, Dr. Miskin found 

that appellant continued to exhibit symptoms of PTSD, but that she could return to her regular 

work duties with the restrictions that she not be assigned to violent patients or those with a known 

history of combativeness.

Drs. Goldman and Robins continued to support appellant’s diagnosis of PTSD and 

disability from work through August 25, 2011.

On August 26, 2011 OWCP referred appellant, a statement of accepted facts (SOAF), and 

a list of questions for an impartial medical examination with Dr. Harry Aaron, a Board-certified 

psychiatrist.

In a report dated October 14, 2011, Dr. Aaron noted appellant’s history of injury and her 

symptoms of occasional nightmares and disturbing memories of her assault. He reported that she

had returned to the employing establishment without significant emotional discomfort and that she 

felt emotionally ready to return to her duties and to work with patients even if they had a history 

of violence. Appellant noted that she wanted to return to work without restrictions. Dr. Aaron 

diagnosed PTSD, chronic type, and paranoid personality disorder. He agreed that it was in 

appellant’s best interest to return to work to aid in her continuing recovery. Dr. Aaron also 

recommended that appellant be given up to one year to pass her social work licensing examination. 

He found that the intensity of appellant’s PTSD had diminished to the extent that it no longer 

interfered with her test-taking ability. Dr. Aaron found that, although appellant continued to suffer 
3

from the symptoms of PTSD, the intensity of the symptoms had diminished to the point that she 

was no longer psychiatrically disabled by her disorder and could immediately return to work with 

no restrictions.

Appellant continued to treat with Dr. Goldman through November 2, 2012 and Dr. Robins 

through July 15, 2014. On March 22, 2012 Dr. Goldman found that appellant was unable to return 

to work due to continuing health problems, even though she had a strong desire to resume 

employment. Her last note, dated November 2, 2012, addressed stress associated with interactions 

with the employing establishment and the rehabilitation counselor. Dr. Goldman indicated that 

appellant was considering disability retirement, but did not specifically address her ability to return 

to work due to PTSD. Dr. Robins completed a series of weekly and biweekly form reports.

On January 15, 2015 the employing establishment offered appellant a light-duty position 

as a financial account technician. Appellant accepted the light-duty position on January 26, 2015 

and returned to work on February 9, 2015.

On June 28, 2016 OWCP authorized right shoulder rotator cuff repair.

Appellant filed a notice of recurrence (Form CA-2a) on August 8, 2017 alleging that on 

June 15, 2017 she sustained a recurrence of disability causally related to her November 18, 2009 

employment injury. On August 15, 2017 she underwent right shoulder surgery.

By decision dated August 18, 2017, OWCP accepted that appellant sustained a recurrence 

of disability on June 15, 2017 due to the accepted right shoulder condition and resultant surgery. 

On October 10, 2017 it placed her on the periodic rolls, with wage-loss compensation retroactive 

to September 16, 2017.

On September 20 and November 15, 2017 appellant’s attending physician, Dr. David 

Capiola, a Board-certified orthopedic surgeon, found that she was totally disabled from work.

By letter dated November 27, 2017, the employing establishment informed appellant that 

her term appointment as a “social worker associate” would be terminated effective 

December 30, 2017.

On January 19, 2018 OWCP referred appellant, a SOAF, and a series of questions to

Dr. Andrew Farber, an osteopath specializing in orthopedic surgery, to address her disability from 

work.

In a February 5, 2018 report, Dr. Farber noted appellant’s history of injury and medical 

treatment and performed a physical examination, noting that appellant walked without an assistive 

device or antalgic gait. He found that appellant was neurovascularly intact in the upper extremities, 

but had some hypertrophic paraspinal musculature on the right extending toward the trapezial 

region. Dr. Farber found loss of range of motion (ROM) in the neck. Regarding appellant’s lumbar 

spine, Dr. Farber reported loss of ROM and positive straight leg raising with no radicular 

symptoms and no reflex abnormalities. He noted that appellant’s right shoulder was recovering 

from surgery. Dr. Farber found that she had disabling residuals of her accepted conditions 

including hypertonic paraspinal musculature on the right and limited ROM. He determined that 

appellant’s conditions had not resolved, but that she had reached maximum medical improvement 
4

and could return to her date-of-injury job eight hours a day with no restrictions. Dr. Farber noted 

that appellant believed that she could adequately walk, sit, write, and stand when needed.

On February 7, 2018 Dr. Capiola found that appellant could return to part-time work for 

six hours a day beginning March 12, 2018. On February 15 and March 1, 2018 Dr. Irfan Alladin, 

a Board-certified orthopedic surgeon, noted appellant’s history of injury and listed her diagnoses 

as low back pain, thoracic spine pain, cervicalgia, shoulder pain, cervicobrachial syndrome, 

cervical radiculopathy, and lumbar radiculopathy.

On February 15 and March 1, 2018 Dr. Torrance Winn, a physician Board-certified in pain 

medicine, completed form reports and opined that appellant could not return to work due to pain 

and restricted movement of her neck, mid and lower back, and right shoulder.

In a letter dated March 19, 2018, OWCP requested a supplemental report from Dr. Farber 

and provided him with appellant’s date-of-injury position description as well as her limited-duty 

position as a financial accounts technician. On March 23, 2018 Dr. Farber provided an addendum

after he reviewed the position description, and opined that appellant was capable of returning to 

her position as a social worker.

In a March 28, 2018 form report, Dr. Capiola found that appellant was totally disabled due 

to limited ROM of her right shoulder.

On April 25, 2018 OWCP provided appellant with a notice of proposed termination of her 

wage-loss compensation. It found that Dr. Aaron’s October 14, 2011 report established that she 

was no longer psychiatrically disabled and could return to work in her date-of-injury position. 

OWCP noted that appellant had remained under psychological treatment from Dr. Robins and 

returned to full-time limited-duty work on February 9, 2015 as a financial accounts technician until 

her right shoulder surgery. It found that Dr. Farber’s February 5, 2018 report established that she 

had no continuing physical disability and could return to her date-of-injury position, despite her 

ongoing medical residuals. OWCP afforded appellant 30 days to submit additional evidence or 

arguments if she disagreed. Appellant did not respond. 

By decision dated May 29, 2018, OWCP terminated appellant’s wage-loss compensation 

effective May 30, 2018.

On May 31, 2018 counsel requested that OWCP further develop the issue of appellant’s 

psychiatric condition and resulting disability, if any.

In a report dated May 24, 2018, Dr. Winn continued to list appellant’s diagnosed 

conditions.4

On August 13, 2018 appellant underwent a lumbar spine magnetic resonance imaging 

(MRI) scan which demonstrated a herniated disc at L3-4 and disc bulges at L1-2, L2-3, L4-5, and 

L5-S1.

 

4

In August 2 and 30, 2018 reports, Dr. Winn repeated his diagnoses. 
5

On August 20, 2018 Dr. Alladin opined that appellant could not work due to pain and 

limited movement from ongoing pain. On August 22, 2018 appellant underwent an 

electromyogram and a nerve conduction velocity (EMG/NCV) study, which demonstrated 

evidence of right L5-S1 lumbar radiculopathy and sensory neuropathy of the bilateral lower 

extremities.

On December 4, 2018 appellant, through counsel, requested reconsideration of the May 29, 

2018 decision. Counsel contended that the medical evidence that appellant’s PTSD was no longer 

disabling was stale and failed to establish that the condition had resolved. He further contended 

that there was an existing conflict of medical opinion evidence between Dr. Farber and appellant’s 

attending physicians. Counsel provided a report dated August 28, 2018 from Dr. Capiola and an 

August 29, 2018 report from Dr. Goldman.

On August 28, 2018 Dr. Capiola found that appellant was totally disabled and diagnosed 

status post right shoulder arthroscopy. He noted that she had requested to return to work due to 

financial constraints in August 2018 and that the accident of November 18, 2009 was the 

competent producing cause of her disability.

In her August 29, 2018 report, Dr. Goldman addressed appellant’s ongoing PTSD. She 

opined that appellant could no longer function optimally under conditions of stress or in crowds 

as she had flashbacks of the attack. Dr. Goldman noted that appellant’s sleep was interrupted and 

disturbed by nightmares. She found that appellant was hyper-alert and fearful that the unexpected 

could recur. Dr. Goldman found that without the wherewithal to resume her pre-accident life, she 

was unable to work at a job that had defined who she was. She reported that appellant continued 

to ruminate about the employment injury and had developed a personality that was inconsistent 

with her pre-accident personality. Dr. Goldman opined that appellant’s moodiness, tearfulness, 

obsessive thinking, anxiety, and sadness did not predate her employment injury.

On October 18, 2018 Dr. Capiola provided an addendum to his August 28, 2018 report and 

noted that appellant continued to have severe pain in her right shoulder, difficulties lifting, lifting 

overhead, typing, and sleeping on her right shoulder. He reported physical findings including 

edema, tenderness, and positive Hawkin’s and Neer signs. Dr. Capiola found that appellant was 

totally disabled from her work as a social worker due to her inability to type as well as her inability 

to lift files and paperwork. He noted that in February 2015 appellant had requested a return to 

work due to financial constraints.

In a December 5, 2018 report, Dr. Jacob Nir, a Board-certified physiatrist, found that 

appellant was disabled from all work due to continued restricted motion, pain, and weakness to 

the right arm. He diagnosed cervical and lumbar radiculopathy with nerve root involvement. 

Dr. Nir noted that appellant had returned to clerical work which entailed typing and sitting for 

prolonged periods. He advised that appellant could not perform these duties.

On February 21, 2019 OWCP referred appellant, a SOAF, and a list of questions for a 

second opinion evaluation with Dr. Tara Brass, a Board-certified psychiatrist.

In her March 20, 2019 report, Dr. Brass noted appellant’s history of injury and described 

her medical treatment. She diagnosed PTSD causally related to the accepted employment injury. 
6

Dr. Brass recommended further psychiatric treatment. She found a moderate, partial disability, 

but determined that appellant was able to return to work part time to minimize stress.

In a decision dated May 30, 2019, OWCP affirmed the finding that appellant was not totally 

disabled as her physicians had not provided a rationalized medical explanation for her continued 

disability. It determined, therefore, that the weight of the medical evidence remained with

Dr. Farber who found that she was capable of physically returning to her date-of-injury position 

as a social worker. With regard to appellant’s continuing disability due to PTSD, OWCP further

found that appellant continued to be partially disabled due to this condition and continued to 

require medical treatment. Therefore, it vacated this aspect of the May 29, 2018 termination 

decision and thus, the issue of termination of wage-loss compensation due to PTSD is not before 

the Board on appeal.5

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.6 After it has determined that an employee 

has disability causally related to his or her federal employment, it may not terminate compensation 

without establishing that the disability has ceased or that it is no longer related to the employment.7 

OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion 

evidence based on a proper factual and medical background.

8

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective May 30, 2018.

OWCP terminated appellant’s wage-loss compensation effective May 30, 2018 due to her 

accepted physical conditions based on the February 5 and March 23, 2018 reports of Dr. Farber, 

OWCP’s referral physician. In his February 5, 2018 report, Dr. Farber found that appellant had 

some hypertrophic paraspinal musculature on the right extending toward the trapezial region as 

well as loss of ROM in the neck. Regarding appellant’s lumbar spine, he reported loss of ROM 

and positive straight leg raising. Dr. Farber found that appellant had disabling residuals of her 

accepted conditions, that her conditions had not resolved, but that she could return to her date-ofinjury job eight hours a day. He noted that appellant believed that she could adequately walk, sit, 

write, and stand when needed. In his March 23, 2018 addendum, Dr. Farber reviewed appellant’s 

date-of-injury position description, and opined that appellant was capable of returning to her 

position as a social worker.

 

5 See S.S., Docket No. 19-1091 (issued December 3, 2019) (in which an OWCP hearing representative vacated a 

termination decision and that decision was not before the Board on appeal).

6 M.M., Docket No. 17-1264 (issued December 3, 2018).

7 E.B., Docket No. 18-1060 (issued November 1, 2018).

8 G.H., Docket No. 18-0414 (issued November 14, 2018).
7

The Board notes that Dr. Farber provided no specific objective medical findings to 

substantiate that appellant’s accepted conditions had resolved, such that she was no longer 

disabled. Dr. Farber related that she continued to have hypertrophic paraspinal musculature on the 

right extending toward the trapezial region as well as loss of ROM in the neck and in the lumbar 

spine with positive straight leg raising, but he opined that she was not totally disabled. To establish 

that appellant is no longer disabled due to the accepted conditions, the medical evidence must 

explain that she ceased to exhibit objective findings of the accepted conditions.9 Dr. Farber 

provided a conclusory opinion, without rationalized objective support for his opinion that 

appellant’s disability had ceased.10

The Board has held that the weight of a medical opinion is determined by the opportunity 

for and thoroughness of examination, the accuracy and completeness of the physician’s knowledge 

of the facts of the case, the medical history provided, the care of analysis manifested, and the 

medical rationale expressed in support of stated conclusions.11 As Dr. Farber provided no medical 

reasoning and merely communicated appellant’s belief that she could return to work, his report is 

insufficient to meet OWCP’s burden of proof.12 The Board therefore finds that Dr. Farber’s 

opinion is of limited probative value on the underlying issue of this case because he failed to 

provide a rationalized medical opinion based on objective findings, that appellant ceased to have 

disability or residuals of her accepted employment-related physical conditions.13

For these reasons, the Board finds that OWCP has not met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits effective May 30, 2018.14

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective May 30, 2018.

 

9 M.R., Docket No. 20-0707 (issued November 30, 2020): A.D., Docket No. 18-0497 (issued July 25, 2018).

10 R.G., Docket No. 16-0271 (issued May 18, 2017).

11 G.B., Docket No. 20-0750 (issued October 27, 2020); A.R., Docket No. 20-0335 (issued August 7, 2020).

12 Cf. L.A., Docket No. 19-0820 (issued December 6, 2019) (finding that medical rationale is based on an 

independent analysis rather than a claimant’s belief).

13 G.B., supra note 11.

14 In light of the Board’s disposition in Issue 1, Issue 2 is rendered moot.
8

ORDER

IT IS HEREBY ORDERED THAT the May 30, 2019 decision of the Office of Workers’

Compensation Programs is reversed.15

Issued: February 23, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer 

a member of the Board effective January 20, 2021.