United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

DEPARTMENT OF THE ARMY, ARKANSAS 

NATIONAL GUARD, CAMP ROBINSON,

North Little Rock, AR, Employer

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Docket No. 21-0207

Issued: December 22, 2021

Appearances: Case Submitted on the Record

James W. Stanley, Jr., 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 November 23, 2020 appellant, through counsel, filed a timely appeal from a 

November 2, 2020 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 theNovember 2, 2020 decision, appellant submitted additional evidence to OWCP 

and on appeal to the Board. 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

ISSUE

The issue is whether appellant has met his burden of proof to expand the acceptance of his 

claim to include additional conditions as causally related to the accepted March 30, 2005 

employment injury.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.4 The facts and 

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. The relevant facts are as follows.

On March 31, 2005 appellant, then a 37-year-old painter, filed a traumatic injury claim 

(Form CA-1) alleging that on March 30, 2005 he sustained a lumbar sprain/strain due to lifting 

sand bags off a pallet while in the performance of duty. OWCP initially accepted that he sustained 

a lumbar sprain/strain and later expanded the acceptance of his claim to include displacement of 

lumbar intervertebral discs at L4-5 and L5-S1 without myelopathy, other complications due to 

other internal orthopedic device, implant and graft and disorders of the left sacrum. Appellant 

stopped work for various periods, commencing March 30, 2005, and OWCP paid appellant wageloss compensation for periods of disability from work.

OWCP authorized the performance on December 9, 2005 of lumbar laminectomy and 

fusion surgery at L4-5 and L5-S1.

On February 11, 2008 appellant underwent additional OWCP-authorized surgery at L4-5 

and L5-S1, including re-exploration of lumbar fusion with removal of pedicle screws at L4 and

L5.

On March 19, 2008 OWCP expanded the acceptance of the claim to include complications 

due to internal orthopedic device, implant, and graft. 

After developing the medical evidence, OWCP expanded the acceptance of appellant’s 

claim on November 16, 2010 to include disorder of the left side of his sacroiliac joint.

On July 24, 2019 appellant requested that the acceptance of his claim be expanded to 

include additional right leg conditions causally related to the accepted March 30, 2005 

employment injury. In a July 26, 2019 report, Dr. Kenneth Rosenzweig, a Board-certified 

orthopedic surgeon, diagnosed postlaminectomy syndrome with chronic L5 radiculopathy and 

pain confirmed by nerve testing involving both the right and left leg; and S1 joint dysfunction as 

an adjacent level syndrome from a lumbar spinal fusion status post hardware removal. 

On November 8, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questions, for a second opinion examination and evaluation with

Dr. Jason G. Stewart, a Board-certified orthopedic surgeon. It requested that Dr. Stewart evaluate 

whether the acceptance of appellant’s claim should be expanded to include additional conditions 

causally related to the accepted March 30, 2005 employment injury.

4 Docket No. 12-0645 (issuedAugust7, 2012).
3

In a December 9, 2019 report, Dr. Stewart discussed appellant’s factual and medical 

history and reported the findings of his physical examination. He advised that appellant had no 

tenderness over the lumbar region upon palpation, and that range of motion of the lumbar spine

revealed mild discomfort. Dr. Stewart reported that bilateral Faber testing was positive, bilateral 

supine straight leg raising testing was positive at 10 degrees, and seated straight leg raising testing 

was negative. He diagnosed fusion of the spine and postoperative arthrodesis, and noted that the 

herniated nucleus pulposus at L4-5 was resolved by the surgical removal of hardware. Dr. Stewart 

opined that there was no objective evidence to support a diagnosis of sacroiliac joint disorder

connected to the March 30, 2005 employment injury. He reported that he was unable to establish 

additional diagnoses connected to the March 30, 2005 employment injury, specifically noting that 

no right lower extremity pathology was found in connection with that injury.

By decision dated December 31, 2019, OWCP denied appellant’s claim, finding that he 

had not met his burden of proof to expand the acceptance of his claim to include additional 

conditions as causally related to the accepted March 30, 2005 employment injury. It determined 

that the December 9, 2019 opinion of Dr. Stewart carried the weight of the medical evidence.

On January 10, 2020 appellant, through counsel, requested reconsideration of the 

December 31, 2019 decision.

Appellant submitted a January 21, 2020 report from Dr. Kevin Collins, an attending Boardcertified orthopedic surgeon, who discussed appellant’s factual and medical history and reported 

the findings of his physical examination. Dr. Collins diagnosed herniated nucleus pulposus at L4, 

L5, and S1 with radiculopathy, S1 joint dysfunction, and chronic back pain due to trauma. He

opined that appellant’s lifting and handling of heavy sand bags on March 30, 2005, necessitated 

lumbar surgery and that appellant now had postlaminectomy syndrome affecting both lower 

extremities. Dr. Collins indicated that diagnostic testing confirmed that appellant’s L5 

radiculopathy was worse in the right lower extremity than in the left lower extremity.

In August 2020 OWCP determined that there was a conflict in the medical opinion 

evidence between Dr. Stewart and Dr. Collins regarding whether the acceptance of appellant’s 

claim should be expanded to include additional conditions causally related to the accepted 

March 30, 2005 employment injury. In order to resolve the conflict, it referred appellant, pursuant 

to section 8123(a) of FECA (5 U.S.C. § 8123(a)), to Dr. Michael S. Clarke, a Board-certified 

orthopedic surgeon, for an impartial medical examination and an opinion on the matter. OWCP

provided Dr. Clarke with a SOAF and a series of questions.

In a September 8, 2020 report, Dr. Clarke detailed appellant’s factual and medical history 

and reported the findings of his physical examination. He discussed appellant’s lumbar surgeries 

and diagnostic testing, and noted that appellant presently reported having persistent low back pain 

with occasional referral to his lower extremities. Dr. Clarke indicated that, upon examination, the 

strength of right-sided dorsiflexion was questionably slightly decreased in comparison to the left 

side without confirmation through atrophy. He noted that straight leg testing bilaterally produced 

back pain, but no significant radicular pain. Dr. Clarke indicated that appellant’s “back situation 

can be described as an exacerbation of the preexisting congenital condition of L5 [-]S1 

spondylolisthesis with degenerative disc disease.” He advised that spondylolisthesis, due to pars 

interarticularis defects, was a congenital deficit, which could cause instability and subsequent 

degenerative disc disease. Dr. Clarke opined that his examination of appellant showed minimal 

objective findings and noted, “[n]o significant radiculopathy of the right lower extremity could be 
4

demonstrated.” He noted that x-rays demonstrated a herniated degenerative disc at L4-5 and that 

a magnetic resonance imaging (MRI) scan showed facet hypertrophy contributing to the abutment 

of the bilateral exiting L5 nerves.

By decision dated November 2, 2020, OWCP denied modification of its December 31, 

2019 decision. It found that the special weight of the medical evidence regarding appellant’s 

expansion claim rested with the opinion of Dr. Clarke, the impartial medical specialist.

LEGAL PRECEDENT

When 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.5 The medical evidence required to establish causal relationship 

between a specific condition, and the employment injury 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 the specific 

employment factors identified by the claimant.6

The Board has held that when the medical evidence supports an aggravation or acceleration 

of an underlying condition precipitated by working conditions or injuries, such disability is 

compensable.7 However, the normal progression of untreated disease cannot be stated to constitute 

“aggravation” of a condition merely because the performance of normal work duties reveals the 

underlying condition.8

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 specialist) who shall 

make an examination.9 For a conflict to arise, the opposing physicians’ opinions must be of 

virtually equal weight and rationale.10 In situations where the case is properly 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.11

5

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., 

Docket No. 12-0599 (issued October 2, 2012); JajaK. Asaramo, 55 ECAB 200, 204 (2004). 

6

See E.J., Docket No. 09-1481 (issued February 19, 2010).

7 C.H., Docket No. 17-0488 (issued September 12, 2017).

8

Id.

9

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August30, 2021); R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May4, 2009); M.S., 58 ECAB 328 (2007).

10 P.R., Docket No. 18-0022 (issued April9, 2018).

11 See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 

ECAB 1010 (1980).
5

In a situation where OWCP secures an opinion from an impartial medical examiner for the 

purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report 

from the examiner for the purpose of correcting the defect in the original opinion. 12

ANALYSIS

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

OWCP properly determined that there was a conflict in the medical opinion between

Dr. Stewart, an OWCP referral physician, and Dr. Collins, an attending physician, regarding 

whether the acceptance of appellant’s claim should be expanded to include additional conditions 

causally related to the accepted March 30, 2005 employment injury. In order to resolve the 

conflict, it properly referred appellant, pursuant to section 8123(a) of FECA, to Dr. Clarke for an 

impartial medical examination and an opinion on the matter.13

In a September 8, 2020 report, Dr. Clarke noted that appellant presently reported having 

persistent low back pain with occasional referral to his lower extremities. He indicated that, upon 

examination, the strength of right-sided dorsiflexion was questionably slightly decreased in 

comparison to the left side without confirmation through atrophy. Straight leg testing bilaterally 

produced back pain, but no significant radicular pain. Dr. Clarke indicated that appellant’s “back 

situation can be described as an exacerbation of the preexisting congenital condition of L5 [-]S1 

spondylolisthesis with degenerative disc disease.” He advised that spondylolisthesis due to pars 

interarticularis defects was a congenital deficit, which could cause instability and subsequent 

degenerative disc disease. Dr. Clarke opined that his examination of appellant showed minimal 

objective findings and noted, “[n]o significant radiculopathy of the right lower extremity could be 

demonstrated.” He noted that x-rays demonstrated a herniated degenerative disc at L4-5 and that 

an MRI scan showed facet hypertrophy contributing to the abutment of the bilateral exiting L5 

nerves.

The Board finds that the September 8, 2020 report of Dr. Clarke raises questions that 

require clarification. In several parts of his report, Dr. Clarke referred to appellant not having 

significant radiculopathy of the lower extremities. He thereby raised the possibility of appellant 

having a diagnosable lower extremity condition, albeit of perhaps a lesser degree. Dr. Clarke did 

not adequately explain why a diagnosis of some form of a work-related lower extremity condition 

was not appropriate. Such clarification is especially necessary in the present case as appellant’s 

claim has been accepted for displacement of lumbar intervertebral discs at L4-5 and L5-S1, as well 

as for complications related to OWCP-authorized surgery at the lumbar disc levels. In addition,

Dr. Clarke did not adequately explain why the diagnostic testing of record did not demonstrate a 

work-related lower extremity condition.

For the above-described reasons, the conflict in medical opinion remains unresolved. 

Therefore, the Board will remand this case to OWCP for referral of the case record, a SOAF, and, 

if necessary, appellant, to Dr. Clarke for a supplemental report regarding whether the acceptance 

of his claim should be expanded to include additional conditions causally related to the accepted 

12 S.R., Docket No. 17-1118 (issued April5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

13 See supra notes 10 and 11.
6

March 30, 2005 employment injury. If Dr. Clarke is unable to clarify or elaborate on his original 

report or if his supplemental report is also vague, speculative, or lacking in rationale, OWCP must 

submit the case record and a detailed SOAFto a new impartial specialist for the purpose of obtaining 

his or her rationalized medical opinion on the issue.14 After this and such further development as 

deemed necessary, OWCP shall issue a de novo decision regarding appellant’s expansion claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 2, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board.

Issued: December 22, 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

14 J.K., Docket No. 21-0007 (issued July 30, 2021; R.H., Docket No. 17-1903 (issued July5, 2018); Harold Travis, 30 

ECAB 1071, 1078 (1979).