United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, CLEVELAND 

HEIGHTS POST OFFICE, 

Cleveland Heights, OH, Employer

__________________________________________

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Docket No. 21-0290

Issued: November 5, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 December 23, 2020 appellant, through counsel, filed a timely appeal from a 

September 2, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2 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 appellant submitted additional evidence to OWCP following the September 2, 2020 decision. 

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 her burden of proof to expand the acceptance of her 

claim to include a right labral tear as causally related to her accepted February 28, 2012 

employment injury.

FACTUAL HISTORY

On February 28, 2012 appellant, then a 43-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained injuries to both knees when she tripped on a mail 

strap while in the performance of duty. She stopped work on February 28, 2012. OWCP accepted 

the claim for bilateral knee contusions.4 Appellant returned to limited-duty work on or about 

March 20, 2012. Dr. John H. Wilber, a Board-certified orthopedic surgeon, released her to fullduty work effective April 30, 2012. 

Thereafter, Dr. Wilber submitted periodic reports through August 30, 2012, noting 

continued right hip pain. He administered a series of lidocaine injections to the right trochanteric 

bursa. In a November 1, 2012 report, Dr. Wilber noted increasing right hip and right-sided groin 

pain radiating into the thigh. He noted that, as x-rays did not indicate “real traumatic changes,”

there could be “something in the soft tissues, such as a labral-type tear.” Dr. Wilber noted in a 

February 18, 2013 report that a February 5, 2013 magnetic resonance imaging (MRI) scan of the 

right hip demonstrated moderate degenerative changes consistent with trochanteric bursitis “which 

[was] probably traumatic and aggravation of her hip pain.”

5 He submitted periodic reports through 

March 11, 2014 diagnosing right trochanteric bursitis. 

On May 5 and August 6, 2014 OWCP expanded its acceptance of the claim to include right 

trochanteric bursitis and enthesopathy of the right hip. 

In a January 5, 2016 report, Dr. Timothy J. Nice, a Board-certified orthopedic surgeon,

diagnosed bilateral hip bursitis. In reports through May 3, 2016, he attributed appellant’s right hip 

pain to a tight iliotibial band with secondary bursitis. Dr. Nice explained in an August 23, 2016 

report that the tight iliotibial band caused right trochanteric bursitis as it had irritated the bursa 

when she walked up and down inclines and stairs carrying a heavy mail satchel. In a May 1, 2018 

report, he opined that as appellant’s right hip pain radiated into the groin, and she had fallen 

directly onto her right knee, that she could have labral pathology and not trochanteric bursitis.

In a report dated September 13, 2018 report, Dr. Nice noted that an August 14, 2018 MRI 

scan of the right hip demonstrated a labral tear.

6

 He opined that the accepted injury caused the 

labral tear because appellant had no prior complaints or buttock pain. Dr. Nice requested that 

OWCP expand its acceptance of the claim to include a labral tear of the right hip. 

4 OWCP paid appellant wage-loss compensation on the supplemental rolls from April 24 through30, 2012. 

5 A February 5, 2013 MRI scan of the hips showed mild bilateral trochanteric bursitis and mild bilateral 

osteoarthritis. 

6 An August 14, 2018 MRI scan of the right hip demonstrated abnormal signal and morphology of the anterior 

superior labrum consistent with a degenerative-type tear, with soft tissue edema at the greater trochanter extending 

into the distal gluteus medius and minimus muscles. 
3

In a development letter dated December 10, 2018, OWCP notified appellant of the 

additional evidence needed to expand the acceptance of her claim to include a labral tear of the 

right hip. It afforded her 30 days to submit the necessary evidence. 

OWCP received additional reports by Dr. Nice dated December 17, 2018 through 

January 29, 2019 in which he opined that the mechanism of the accepted February 28, 2012 

employment injury, where appellant tripped over a strap, twisted her right leg, and then fell forward 

onto her knees with the right lower extremity angled outward, was competent to cause a right labral 

tear. Dr. Nice noted that trochanteric bursitis had been a misdiagnosis, as her symptoms were 

generated by the muscles beneath the bursa. 

On February 4, 2019 OWCP referred appellant, along with statement of accepted facts 

(SOAF), to Dr. William R. Bohl, a Board-certified orthopedic surgeon, for a second opinion on 

the nature of the work-related condition and any attendant disability. In a March 26, 2020 report,

Dr. Bohl reviewed the medical record and SOAF. He related that appellant first experienced right 

hip pain during physical therapy prescribed to treat the accepted knee injuries. Dr. Bohl diagnosed 

a “partial tearing or tendinitis of the gluteus medius and minimus,” which was “likely” caused by 

“one of the exercises in physical therapy” for her knees as it was degenerative in nature and not 

the result of an acute injury. He noted work restrictions. 

On April 10, 2019 OWCP expanded its acceptance of the claim to include aggravation of 

chondromalacia of the patella of both knees, gluteal tendinitis of the right hip, other specified 

enthesopathies of the right lower limb, and enthesopathy of the right hip region. 

On April 10, 2019 OWCP forwarded Dr. Bohl’s report to Dr. Nice for review and 

comment. In a May 2, 2019 report, Dr. Nice expressed his disagreement with Dr. Bohl’s opinion. 

He opined that the August 14, 2018 MRI scan demonstrated “abnormal signal morphology of the 

anterior superior labrum that was consistent with a degenerative-type tear in the labrum” and 

inflammatory changes in the gluteus medius and minimus muscles indicative of a strain injury. 

Dr. Nice explained that it was immaterial whether the right labral tear was acute or degenerative, 

as it was related to the February 28, 2012 fall in either case. 

In July 2019, OWCP determined that there was a conflict in the medical opinion evidence 

between Dr. Nice, the attending physician, and Dr. Bohl, OWCP’s referral physician, on the issue 

of whether appellant sustained a right labral tear causally related to the accepted employment 

injury, and the nature of her ongoing condition. In order to resolve the conflict, it referred her, 

pursuant to section 8123(a) of FECA (5 U.S.C. § 8123(a)), to Dr. Dennis A. Glazer, a Boardcertified orthopedic surgeon, for an impartial medical examination and an opinion on the issue.

In an August 30, 2019 report, Dr. Glazer reviewed the medical record and SOAF. On 

examination of the right lower extremity he noted tenderness over the greater trochanter, rightsided groin pain when flexing or abducting the right hip, gluteal tendinitis of the right hip, and 

residual of aggravation of bilateral patellar chondromalacia. Dr. Glazer opined both that appellant 

continued to suffer from the effects of the accepted employment conditions. He noted that the 

imaging studies did not demonstrate a labral tear of the right hip and that the second MRI scan 

showed a degenerative labral tear. Dr. Glazer pointed out that issues with appellant’s right hip 

“were not noted until several weeks after the work injury,” and that she had no evidence of hip 

problems during the emergency room visit. He concluded that a right hip labral tear was “not 
4

present” and was unrelated to the accepted February 28, 2012 employment injury “by any means 

of causation.”

By decision dated October 11, 2019, OWCP denied expansion of the acceptance of the

claim to include right hip labral tear. It found that the special weight of the medical evidence 

rested with the opinion of Dr. Glazer as the impartial medical specialist. 

On October 16, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on February 7, 2020. 

By decision dated March 17, 2020, the hearing representative affirmed the October 11, 

2019 decision. 

On August 31, 2020 appellant, through counsel, requested reconsideration. In support of 

the request, she provided a March 10, 2020 report by Dr. Nice, noting that her right hip symptoms 

began within a week of the February 28, 2012 employment injury. Dr. Nice explained that the 

August 14, 2018 MRI scan, performed six years after the accepted injury, would be expected to 

demonstrate chronic changes and fraying of the labrum, in addition to chronic gluteus medius and 

minimus tendinitis. 

In an August 11, 2020 report, Dr. Nice asserted that Dr. Bohl misdiagnosed gluteal 

tendinitis and not trochanteric bursitis as he was confused by the edema in the gluteus medius and 

minimus directly adjacent to the trochanteric bursa. He diagnosed a labral tear in the left hip as 

well as the right hip. 

By decision dated September 2, 2020, OWCP denied modification of its March 17, 2020 

decision.

LEGAL PRECEDENT

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.7

To establish causal relationship between the claimed condition as well as any attendant 

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

evidence.8 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.9 The weight of medical evidence is 

7 D.B., Docket No. 20-1280 (issued March2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T., 

Docket No. 19-1718 (issued April7, 2020); JajaK. Asaramo, 55 ECAB 200 (2004).

8 T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 

465 (2004).

9 D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 

41 ECAB 345 (1989).
5

determined by its reliability, its probative value, its convincing quality, the care of analysis 

manifested, and the medical rationale expressed in support of the physician’s opinion.10

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, the question is whether compensability should be extended to a 

subsequent injury or aggravation related in some way to the primary injury. The rules that come 

into play are essentially based upon the concepts of direct and natural results and of the claimant’s 

own conduct as an independent intervening cause. The basic rule is that a subsequent injury, 

whether an aggravation of the original injury or a new and distinct injury, is compensable if it is 

the direct and natural result of a compensable primary injury.11

Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

12

 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.13 Where a 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 on a proper factual background, must be given special weight. 14

ANALYSIS

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

OWCP found that a conflict of medical opinion existed between Dr. Nice and Dr. Bohl as 

to whether the accepted February 28, 2012 employment injury caused a right labral tear. It referred 

appellant to Dr. Glazer for an impartial medical evaluation to resolve the conflict, pursuant to 5 

U.S.C. § 8123(a). The Board has held that if there is a disagreement between OWCP’s physician 

and appellant’s physician, OWCP will appoint a third physician who shall make an examination.

15

 

For a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and 

rationale.16 

OWCP’s second opinion physician, Dr. Bohl, opined that appellant “likely” sustained a 

right hip injury during unspecified physical therapy exercises prescribed to treat the accepted 

bilateral knee contusions. The Board finds, however, that Dr. Bohl’s opinion was speculative and 

10 See P.M., Docket No. 18-0287 (issued October 11, 2018).

11 D.B., supra note 7; see V.K., Docket No. 19-0422 (issued June 10, 2020).

12 5 U.S.C. § 8123(a).

13 D.H., Docket No. 19-0687 (issued March 31, 2021); T.J., Docket No. 20-0721 (issued November 17, 2020).

14 Id.

15 Supra note 12. See R.M., Docket No. 19-0163 (issued July 17, 2019).

16 R.M., id.; DarleneR. Kennedy, 57 ECAB 414 (2006).
6

inconsistent and, thus, of diminished probative value.17 Therefore, Dr. Bohl’s report was not of 

equal weight to that of Dr. Nice.

As no true conflict existed in the medical evidence at the time of the referral to Dr. Glazer, 

the Board finds that his report may not be afforded the special weight of an impartial medical 

specialist and should instead be considered for its own intrinsic value.18 The referral to Dr. Glazer 

is, therefore, considered to be for a second opinion evaluation.19

The Board finds that a conflict in the medical opinion evidence now exists between

Dr. Nice and Dr. Glazer regarding whether appellant sustained a right labral tear causally related 

to the accepted February 28, 2012 employment injury. Therefore, OWCP shall refer her to an 

impartial medical specialist for a resolution of the conflict in medical opinion evidence in 

accordance with 5 U.S.C. § 8123(a). After this and other such further development of the case 

record as OWCP deems necessary, it shall issue a de novo decision in the case.

CONCLUSION

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

17 M.L., Docket No. 20-1682 (issued June 24, 2021); see T.M., Docket No. 18-1418 (issued February 7, 2019); S.S., 

Docket No. 17-0781 (issued August1, 2018).

18 See F.R., Docket No. 17-1711 (issued September 6, 2018).

19 L.G., Docket No. 20-0611 (issued February 16, 2021). See also M.G., Docket No. 19-1627 (issued April17, 

2020); S.M., Docket No. 19-0397 (issued August 7, 2019) (the Board found that, at the time of the referral for an 

impartial medical examination there was no conflict in medical opinion evidence; therefore, the referral was for a 

second opinion examination); see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as 

there was no conflict in medical opinion evidence, the report of the physician designated as the impartial medical 

specialist was not afforded the special weight of the evidence, but instead considered for its own intrinsic value as he 

was a second opinion specialist).
7

ORDER

IT IS HEREBY ORDERED THAT the September 2, 2020 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: November 5, 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