United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.N., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Mechanicsburg, PA, Employer

__________________________________________

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Docket No. 21-0123

Issued: December 29, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 4, 2020 appellant, through counsel, filed a timely appeal from an October 1, 

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 the October 1, 2020 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

ISSUE

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

claim to include post-traumatic right radial tunnel syndrome, spinal stenosis, and cervical 

spondylosis causally related to her accepted June 15, 2017 employment injury.

FACTUAL HISTORY

On June 21, 2017 appellant, then a 48-year-old city letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on June 15, 2017 she sustained pain in her head, knees, right 

ankle, shoulder, arm, hand, and the right side of her neck when she was involved in a motor vehicle 

accident (MVA) while in the performance of duty. She stopped work on June 21, 2017 and 

returned to part-time modified employment on September 8, 2017. 

On June 29, 2017 Dr. Timothy Ackerman, an osteopath, noted that appellant complained 

of pain in her right shoulder, left knee, and right hand following the June 15, 2017 work-related 

MVA. 

A June 23, 2016 magnetic resonance imaging (MRI) scan of the cervical spine 

demonstrated degenerative disc disease at C4-5 and C6-7 and a small central disc protrusion at 

C3-4 indenting the ventral aspect of the thecal sac. 

In a report dated February 5, 2018, Dr. Robert J. Maurer, a Board-certified orthopedic 

surgeon, evaluated appellant for right hand pain after a June 15, 2017 MVA. He diagnosed posttraumatic radial neuritis and cervical spondylosis with possible worsening degenerative disc 

disease after an MVA.

On March 12, 2018 Dr. Maurer discussed appellant’s complaints of right hand pain and 

headaches after her MVA on June 15, 2017. He diagnosed right radial tunnel syndrome, spinal 

stenosis at C5-6, and cervical spondylosis at C4-7. 

In a June 13, 2018 report, Dr. Maurer reviewed appellant’s history of a June 15, 2017 work 

injury and the results of diagnostic testing. He diagnosed post-traumatic right radial tunnel 

syndrome and C5-6 spinal stenosis and found that appellant’s “current symptoms are the direct 

result of the [MVA].” Dr. Maurer additionally diagnosed cervical spondylosis at C4-7 and a right 

index sprain injury.

A July 30, 2018 MRI scan of the right hand revealed no evidence of a tendon injury or 

fracture and possible early arthrosis-related changes at the second and third metacarpal heads. 

On November 20, 3018 OWCP referred appellant to Dr. Robert F. Draper, Jr., a Boardcertified orthopedic surgeon, for a second opinion examination to determine whether she had 

sustained an injury on June 15, 2017 and, if so, the nature and extent of any causally related 

disability. In a report dated December 11, 2018, Dr. Draper diagnosed left knee osteoarthritis post

total knee replacement and a traumatic injury to the left knee on June 15, 2017 requiring a patella 

revision, cervical strain, right shoulder strain, and a right hand contusion. He further opined that 

appellant had sustained a right shoulder strain, left knee contusion, and dyskinesis due to her 

employment injury without evidence of permanent aggravation. 
3

On December 27, 2018 OWCP accepted appellant’s claim for resolved right shoulder 

strain, a resolved knee contusion, resolved left knee dyskinesis, and mechanical loosening of the 

internal left knee prosthetic joint.

In a supplemental report dated March 10, 2019, Dr. Draper diagnosed a right shoulder 

strain/sprain, a right shoulder suprascapular rotator cuff tendon tear, right shoulder subdeltoid 

bursitis tendinopathy, a left knee contusion, and a left knee total knee arthroplasty with loose 

patellar components due to trauma as employment-related conditions. 

On April 1, 2019 OWCP expanded its acceptance of appellant’s claim to include a 

suprascapular rotator cuff tendon tear and subdeltoid bursitis tendinopathy of the right shoulder.

Thereafter, OWCP received an MRI scan of appellant’s cervical spine dated February 2, 

2018, which demonstrated spondylosis from C4 to C7, a protrusion at C4-5 without stenosis, mild 

central and bilateral foraminal stenosis at C5-6, and a shallow posterior protrusion without stenosis 

at C6-7. 

On August 16, 2018 Dr. Steven Morganstein, an osteopath, discussed appellant’s 

complaints of headaches and neck, right shoulder, and left knee pain. He noted that her headaches 

and right shoulder pain increased after a June 15, 2017 MVA at work. Dr. Morganstein noted that 

the MVA had occurred following a left total knee arthroscopy.4 He diagnosed cervicalgia and pain 

in the right shoulder and left knee.

In a March 8, 2019 report, Dr. Maurer obtained a history of appellant jamming her left 

index finger on the steering wheel at the time of her June 15, 2017 MVA. He diagnosed right posttraumatic radial tunnel syndrome, spinal stenosis at C5-6, and cervical spondylosis at C4 to C7. 

Dr. Maurer attributed appellant’s symptoms to her 2017 MVA.

On April 24, 2019 OWCP requested that Dr. Draper review Dr. Maurer’s June 13, 2018

and March 8, 2019 reports and address whether appellant had sustained post-traumatic right radial 

tunnel syndrome, C5-6 spinal stenosis, C4-7 cervical spondylosis, or any other additional 

conditions causally related to her accepted employment injury. 

On June 29, 2019 Dr. Draper opined that appellant’s post-traumatic right radial tunnel 

syndrome and tennis elbow were not causally related to the June 2017 employment injury. He 

opined that she had preexisting spinal stenosis at C5-6 and cervical spondylosis at C4-7 well 

documented by a June 23, 2016 MRI scan that predated the injury. Dr. Draper indicated that the 

accepted employment injury had not permanently aggravated or caused a material change to any 

cervical spine condition. He opined that OWCP should not expand the acceptance of the claim to 

include any additional conditions.

By decision dated August 7, 2019, OWCP denied appellant’s request to expand the 

acceptance of her claim to include post-traumatic right radial tunnel syndrome, spinal stenosis, and 

cervical spondylosis causally related to the June 15, 2017 employment injury.

4 Appellant underwent a left knee replacement on August 6, 2018.
4

On August 16, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on December 10, 2019. By decision dated February 13, 

2020, OWCP’s hearing representative set aside the August 7, 2019 decision. He found that a 

conflict in medical opinion existed between Dr. Maurer and Dr. Draper regarding whether OWCP 

should expand the acceptance of the claim to include right radial tunnel syndrome, cervical 

spondylosis, and stenosis.

On February 28, 2020 OWCP referred appellant to Dr. John F. Perry, a Board-certified 

orthopedic surgeon, for an impartial medical examination. 

In a report dated April 9, 2020, Dr. Perry reviewed appellant’s history of injury and her 

complaints of left knee numbness, right arm pain, headaches, and neck pain. He provided his 

review of the medical evidence. On examination, Dr. Perry found normal sensation of the upper 

extremities, normal range of motion of the cervical spine, and questionable positive medial nerve 

compression of the right wrist. He found “no justification for expanding the claim to include 

cervical spondylosis and stenosis or right radial tunnel syndrome.” Dr. Perry indicated that he 

could not diagnose radial tunnel syndrome based on the normal neurological findings. He advised 

that appellant had degenerative C5-6 spinal stenosis and C4-7 cervical spondylosis unrelated to 

trauma. Dr. Perry related, “I found no objective evidence of any aggravation of any preexisting 

conditions, based on any objectively validated structural or measurable physiologic change that 

may have occurred at the time of the June 14, 2017 motor vehicle accident.” He concluded that 

OWCP should not expand its acceptance of the claim to include right radial tunnel syndrome, right 

tennis elbow (post-traumatic), spinal stenosis at C5-6, or cervical spondylosis at C4 to C7.

By decision dated May 8, 2020, OWCP denied appellant’s request to expand the 

acceptance of her claim to include cervical spondylosis and stenosis and right radial tunnel 

syndrome causally related to the accepted June 15, 2017 employment injury. It found that the 

opinion of Dr. Perry, the impartial medical examiner (IME), represented the special weight of the 

evidence.

On May 13, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on August 11, 2020. Appellant related that her neck issues 

had resolved before she resumed work in June 2017. She advised that after her accident she had 

constant headaches.

In a report dated August 28, 2020, Dr. Maurer evaluated appellant for ongoing pain in the 

neck and right hand subsequent to a June 14, 2017 MVA. On examination he found a positive 

Tinel’s sign over the supraclavicular fossa of the right neck causing right arm and shoulder pain. 

Dr. Maurer related that “this likely represents a whiplash-type injury with a sudden forceful 

bending motion to her neck while tensing the muscles around the right shoulder resulting in 

traction neuritis in the right brachial plexus. This mechanism could likely account for all the 

symptoms that she is describing in her neck and right arm.” Dr. Maurer indicated that he had 

found no diagnosis.
5

By decision dated October 1, 2020, OWCP’s hearing representative affirmed the May 8, 

2020 decision.5

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

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.7 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.8 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s 

employment injury.9

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

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

shall appoint a third physician (known as a referee physician or impartial medical specialist) who 

shall make an examination.10 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.11 When there exists opposing medical reports of virtually equal weight and rationale and the 

case is referred to an IME 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

5

In a separate decision dated October 1, 2020, an OWCP hearing representative vacated an April10, 2020 schedule 

award determination and remanded the case for a district medical adviser to review newly submitted evidence.

6

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

Asaramo, 55 ECAB 200, 204 (2004).

7 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8 F.A., Docket No. 20-1652 (issued May 21, 2021); M.V., Docket No. 18-0884 (issued December 28, 2018); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

10 5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August26, 2020); M.S., 58 ECAB 328 (2007).

11 20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

12K.D., Docket No. 19-0281 (issued June30, 2020); Darlene R. Kennedy, 57 ECAB 414 (2006); GloriaJ. Godfrey, 

52 ECAB 486 (2001).
6

ANALYSIS

The Board finds that appellant has not met her burden of proof to expand the acceptance 

of her claim to include post-traumatic right radial tunnel syndrome, spinal stenosis, and cervical 

spondylosis causally related to her accepted June 15, 2017 employment injury.

OWCP properly determined that a conflict in the medical opinion evidence existed between

Dr. Maurer, appellant’s treating physician, and Dr. Draper, an OWCP referral physician, regarding 

whether acceptance of appellant’s claim should be expanded to include additional employmentrelated conditions. It referred her to Dr. Perry, a Board-certified orthopedic surgeon, for an 

impartial medical examination to resolve the conflict in medical evidence.

In an April 9, 2020 report, Dr. Perry discussed appellant’s complaints of headaches and 

pain in the right arm and neck. He found normal sensation and motion on examination and possible 

right wrist median nerve compression. Dr. Perry found no evidence of radial tunnel syndrome as 

the neurological findings were normal. He further opined that the June 14, 2017 MVA had not 

aggravated the preexisting conditions of degenerative C5-6 spinal stenosis and C4-7 cervical 

spondylosis and provided as rationale that there was no evidence showing objective or measurable 

changes in the condition as a result of the injury. 

The Board finds that Dr. Perry accurately described the accepted employment injury and 

provided his review of the medical record. Dr. Perry performed a thorough clinical examination 

with detailed examination findings. He is a specialist in the appropriate field and reached a 

reasoned conclusion regarding whether acceptance of appellant’s claim should be expanded, 

noting that there was no evidence to find causal relationship between right radial tunnel syndrome, 

right tennis elbow (post-traumatic), spinal stenosis at C5-6, or cervical spondylosis at C4 to C7 

and the accepted employment injury.13 The Board, therefore, finds that Dr. Perry’s opinion is 

entitled to the special weight accorded to an IME with regard to the issue of whether acceptance 

of appellant’s claim should be expanded to include additional conditions.14

In a report dated August 28, 2020, Dr. Maurer found a positive Tinel’s sign over the 

supraclavicular fossa of the right neck, which he determined caused appellant’s right shoulder and 

arm pain. He advised that she had “likely” sustained a whiplash injury when her neck forcefully 

bent forward and her right shoulder muscles tensed, causing right brachial plexus traction neuritis. 

Dr. Maurer did not offer a diagnosis. However, he was on one side of the conflict resolved by

Dr. Perry. The Board has held that reports from a physician who was on one side of a medical 

conflict are generally insufficient to overcome the special weight accorded to the IME, or to create 

a new conflict.15 Additionally, Dr. Maurer’s opinion is speculative in nature and thus of 

diminished probative value.16

13 See F.A.,Docket No. 20-1652 (issued May 21, 2021); R.R., Docket No. 19-0086 (issued February10, 2021).

14 F.A., id.

15 See G.H., Docket No. 20-0892 (issued July 9, 2021); I.J., 59 ECAB 408 (2008).

16 See L.F., Docket No. 20-1021 (issued July 30, 2021).
7

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to expand the acceptance 

of her claim to include post-traumatic right radial tunnel syndrome, spinal stenosis, and cervical 

spondylosis causally related to her accepted June 15, 2017 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board