United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.K., Appellant

and

U.S. POSTAL SERVICE, PHILADELPHIA

PROCESSING & DISTRIBUTION CENTER, 

Philadelphia, PA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0387

Issued: May 20, 2022

Appearances: Case Submitted on the Record

Andrew Douglas, 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 January 25, 2021 appellant, through counsel, filed a timely appeal from a January 7, 

2021 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 January 7, 2021 decision, appellant submitted additional evidence to OWCP.

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 February 25, 1999 

employment injury.

FACTUAL HISTORY

OWCP accepted that, on February 25, 1999, appellant, then a 46-year-old maintenance 

mechanic, slipped and fell on a wet surface while in the performance of duty. Appellant indicated 

that his head hit the surface and that he briefly lost consciousness. He stopped work on the date 

of the claimed injury. OWCP initially accepted appellant’s claim for a back contusion4 and paid 

appellant wage-loss compensation for disability from work on the supplemental rolls commencing

April 12, 1999 and on the periodic rolls commencing July 14, 2002.

5

 It later expanded the

acceptance of the claim to include neck sprain, herniated lumbar disc at L4-5, aggravation of 

underlying degenerative cervical and lumbar disc disease, chondromalacia of the patellae of the 

left knee, aggravation of left shoulder impingement syndrome, other psychogenic pain, and major 

depression disorder.

In a May 16, 2007 report, Dr. Steven H. Kahn, an osteopath and Board-certified orthopedic 

surgeon, reported physical examination findings and diagnosed multiple conditions, including left 

C6 radiculopathy, L5-S1 nerve root irritation, and left carpal tunnel syndrome. 

Electrophysiological testing of the lower extremities from June 11, 2008 revealed L5 and S1 

radiculopathies, and electrophysiological testing of the upper extremities from June 27, 2008 

showed left and right C5-6 radiculopathies.

In a November 21, 2013 report, Dr. Kahn diagnosed multiple conditions, including left C6 

radiculopathy, L5-S1 nerve root irritation bilaterally, and left carpal tunnel syndrome.

On January 6, 2014 appellant requested that the acceptance of his claim be expanded to 

include additional conditions causally related to the accepted February 25, 1999 employment 

injury, including cervical radiculopathy, lumbar radiculopathy, and left carpal tunnel syndrome.

In an April 22, 2015 report, Dr. Kahn advised that appellant had multiple conditions related 

to the February 25, 1999 employment injury, including left C6 radiculopathy, L5-S1 nerve root 

irritation bilaterally, and left carpal tunnel syndrome. 

On June 9, 2015 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questions, for a second opinion examination and evaluation to Dr. Stanley 

Askin, a Board-certified orthopedic surgeon. It requested that Dr. Askin indicate whether 

appellant had residuals of the accepted February 25, 1999 employment injury and whether he

sustained any additional conditions on February 25, 1999, other than those already accepted. In a 

July 10, 2015 report, Dr. Askin determined that the February 25, 1999 employment injury had 

4 On October 9, 1998 appellant was involved in a nonwork-related automobile accident and suffered injuries to his 

neck and low back with pain radiating to his left arm and right leg. He was off work for onemonth due to this injury. 

5 Appellant remained off work, except for the period January 15 through April5, 2010 when he worked as a parttime telemarketer in the private sector.
3

resolved and that appellant did not sustain any additional conditions on February 25, 1999, other 

than those already accepted.

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

Dr. Kahn and Dr. Askin regarding residuals/disability related to the accepted February 25, 1999

employment injury. On October 19, 2015 it referred appellant, along with a SOAF and a series of 

questions, for an impartial medical examination and evaluation with Dr. Robert Taffet, a Boardcertified orthopedic surgeon. OWCP requested that Dr. Taffet indicate whether appellant had 

residuals of the accepted February 25, 1999 employment injury and whether he sustained any 

additional conditions on February 25, 1999, other than those already accepted. 

In a December 7, 2015 report, Dr. Taffet determined that the accepted February 25, 1999 

employment injury had resolved. He also found that appellant did not sustain a cervical 

radiculopathy, lumbar radiculopathy, or left carpal tunnel syndrome causally related to the

February 25, 1999 employment injury. 

In a February 28, 2019 report, Dr. Kahn discussed appellant’s factual and medical history 

and reported physical examination findings. He indicated that appellant had undergone an

electromyogram and nerve conduction velocity (EMG/NCV) study on January 28, 1999 prior to 

the February 25, 1999 employment injury. The study revealed a left C6 radiculopathy and no 

evidence of carpal tunnel syndrome. Dr. Kahn opined, within a reasonable degree of medical 

probability, that the left C6 radiculopathy was a preexisting condition that was aggravated by the

February 25, 1999 employment injury. He further maintained that appellant’s left carpal tunnel

syndrome was directly related to the February 25, 1999employment injury. Dr. Kahn also opined,

within a reasonable degree of medical probability, that appellant’s L5-S1 radiculitis was directly 

related to the February 25, 1999 employment injury. 

OWCP referred appellant’s case to Dr. Todd Fellars, a Board-certified orthopedic surgeon 

and OWCP district medical adviser (DMA). It requested that Dr. Fellars review the medical 

evidence of record, including Dr. Kahn’s February 28, 2019 report, and provide an opinion 

regarding whether the acceptance of appellant’s claim should be expanded. In a June 12, 2019 

report, Dr. Fellars opined that appellant’s left carpal tunnel syndrome was not a work-related 

condition. He advised that, according to current medical evidence, repetitive motion over the 

course of years is required to develop work-related carpal tunnel syndrome. Dr. Fellars indicated 

that appellant had not been working in a regular fashion since 1999 and that the medical evidence 

of record would not support that he had carpal tunnel syndrome “that is work-related based on his 

work schedule.” He advised that appellant’s left carpal tunnel syndrome was likely idiopathic in 

nature. Dr. Fellars opined that appellant’s cervical radiculopathy was a preexisting condition and

therefore the February 25, 1999 accident did not cause his cervical radiculopathy. He noted, 

“[a]dditionally, with respect to lumbar radiculopathy, this also pre-existed his work injury and 

therefore it could not be caused by the work injury.”

By decision dated October 29, 2019, OWCP denied appellant’s request for expansion of 

the acceptance of his claim, finding that the medical evidence of record, was insufficient to 

establish additional conditions as causally related to the accepted employment injury.

On October 28, 2020 appellant, through counsel, requested reconsideration of the 

October 29, 2019 decision.
4

Appellant submitted an October 15, 2020 report from Dr. Raymond Candage, a Boardcertified orthopedic surgeon, who indicated that he supported appellant’s request to expand the 

acceptance of his claim to include additional conditions. He opined that the February 25, 1999 

employment injury led to an aggravation of the preexisting condition to appellant’s cervical and 

lumbar spine. Dr. Candage advised that on February 25, 1999 appellant suffered a direct blow to 

the head and back, and experienced some degree of loss of consciousness. He maintained that the 

impact of the slip and fall was “sufficiently violent with sufficient energy expended” to cause an 

aggravation of cervical and lumbar radiculopathies. Dr. Candage opined that the diagnostic tests 

in the case record supported that appellant’s neck and low back nerves were pinched due to the 

February 25, 1999 original injury.

By decision dated January 7, 2021, OWCP denied modification.

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.6 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.7

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.8 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.9

ANALYSIS

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

In his February 28, 2019 report, Dr. Kahn indicated that appellant underwent an 

EMG/NCV study on January 28, 1999, i.e., prior to the February 25, 1999 employment injury, 

which revealed a left C6 radiculopathy and no evidence of carpal tunnel syndrome. He opined

that the left C6 radiculopathy was a preexisting condition that was aggravated by the February 25, 

1999 employment injury. Dr. Kahn further maintained that appellant’s left carpal tunnel syndrome 

6

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). 

7

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

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

9

Id.
5

was directly related to the February 25, 1999 employment injury. He also opined that appellant’s 

L5-S1 radiculitis was directly related to the February 25, 1999 employment injury. 

In his October 15, 2020 report, Dr. Candage indicated that he supported appellant’s request 

to expand the acceptance of his claim to include additional conditions. He opined that the 

February 25, 1999 employment injury led to an aggravation of the preexisting condition to 

appellant’s cervical and lumbar spine. Dr. Candage advised that on February 25, 1999 appellant 

suffered a direct blow to the head and back, and experienced some degree of loss of consciousness. 

He maintained that the impact of the slip and fall was “sufficiently violent with sufficient energy 

expended” to cause an aggravation of cervical and lumbar radiculopathies. Dr. Candage opined 

that the diagnostic tests in the case record supported that appellant’s neck and low back nerves 

were pinched due to the February 25, 1999 original injury.

In contrast to these attending physician reports, Dr. Fellars, the DMA, indicated in his

June 12, 2019 report that appellant’s left carpal tunnel syndrome would not be a work-related 

condition. He advised that, according to current medical evidence, repetitive motion over the 

course of years is required to develop work-related carpal tunnel syndrome. Dr. Fellars indicated 

that appellant had not been working in a regular fashion since 1999 and that the medical evidence 

of record would not support that he had carpal tunnel syndrome “that is work-related based on his 

work schedule.” He advised that appellant’s left carpal tunnel syndrome was likely idiopathic in 

nature. Dr. Fellars opined that appellant’s cervical radiculopathy was a preexisting condition and 

therefore the February 25, 1999 accident did not cause his cervical radiculopathy. He noted, 

“[a]dditionally, with respect to lumbar radiculopathy, this also pre-existed his work injury and 

therefore it could not be caused by the work injury.”

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.10 For a conflict to arise, the opposing physicians’ opinions must be of 

virtually equal weight and rationale.11 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.12

The Board finds that there is an unresolved conflict in the medical opinion evidence 

between appellant’s attending physicians, Dr. Kahn and Dr. Candage, and the government 

physician, Dr. Fellars, regarding whether to expand the acceptance of appellant’s claim to include 

additional conditions causally related to the accepted February 25, 1999 employment injury.

Because there remains an unresolved conflict in medical opinion evidence regarding 

expansion of the acceptance of appellant’s claim, pursuant to 5 U.S.C. § 8123(a), the case will be 

10 5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

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

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

ECAB 1010 (1980).
6

remanded to OWCP for referral of appellant, together with the case record and a SOAF, to a 

specialist in the appropriate field of medicine for an impartial medical examination to resolve the 

conflict. Following this and other such further development as 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 January 7, 2021 decision of the Office of 

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

consistent with this decision of the Board.

Issued: May 20, 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