United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.M., Appellant

and

U.S. POSTAL SERVICE, JENKINTOWN POST 

OFFICE, Jenkintown, PA, Employer

__________________________________________

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Docket No. 23-0091

Issued: August 4, 2023

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 31, 2022 appellant, through counsel, filed a timely appeal from a July 1, 2022 

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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to expand the acceptance 

of her claim to include a C3-C4 disc herniation condition as causally related to her accepted June 9, 

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.
2

2020 employment injury; (2) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective April 20, 2021, as she no longer had 

disability or residuals causally related to her accepted June 9, 2020 employment injury; and 

(3) whether appellant has met her burden of proof to establish continuing disability or residuals on 

or after April 20, 2021, causally related to the accepted June 9, 2020 employment injury. 

FACTUAL HISTORY

On June 11, 2020 appellant, then 50-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on June 9, 2020 she sustained neck, right arm, and right knee strains

when her vehicle was rear-ended while in the performance of duty. OWCP accepted the claim for 

sprain of the ligaments of the cervical spine and sprain of the joints and ligaments of other parts 

of the neck and assigned OWCP File No. xxxxxx846.

3

 Appellant stopped work on June 9, 2020. 

OWCP paid appellant wage-loss compensation on the supplemental rolls, effective July 25, 2020, 

and on the periodic rolls, effective January 3, 2021.

A magnetic resonance imaging (MRI) scan of the cervical spine dated June 9, 2020 

revealed no fracture or malalignment, the central canal appeared congenitally narrow, cervical 

spondylosis to include left paracentral disc herniation at C3-C4 causing mild flattening of the

ventral cord, and mild-to-moderate central stenosis.

On November 19, 2020 Dr. Yan Gu, a Board-certified physiatrist, treated appellant and 

administered an intra-articular injection. He diagnosed cervical spondylosis without myelopathy 

or radiculopathy and cervical spondylosis without myelopathy. In a December 4, 2020 report,

Dr. Gu related that on June 9, 2020 appellant was rear-ended in her vehicle while at work. 

Appellant reported that her head and neck were thrown backward and forward during the impact

but she did not lose consciousness. She noted her current symptoms included radicular pain up 

the back of the head and jaw and down the right shoulder and shoulder blade with occasional 

numbness and tingling in her hand. Dr. Gu noted findings on physical examination of cervical 

rigidity, local tenderness to facet joint line with positive loading test, limited range of motion of 

the neck, and positive Spurling’s test. He diagnosed whiplash injury to the neck, sprain of the 

joints and ligaments of other parts of the neck, and cervical spondylosis without myelopathy. 

Dr. Gu recommended a series of intra-articular injections and returned appellant to modified-duty

work. In a note of even date, he diagnosed cervical whiplash syndrome that began after a work

injury on June 9, 2020. Dr. Gu recommended right C3 and C4 medial branch blocks and returned 

appellant to modified-duty work with no repetitive activity, no bending, stooping, kneeling or 

squatting, and a lifting restriction of 10 pounds. In a disability claim form of even date , he

3 Appellant had previously filed an occupational disease claim (Form CA-2) alleging that she developed a right 

shoulder condition due to factors of her federal employment, including performing repetitive duties. She noted that 

she first became aware of her conditions on January 26, 2005 and first realized its rela tion to her federal employment 

on February 18, 2005. OWCP assigned that claim OWCP File No. xxxxxx623, and accepted it for tendinitis of the 

right shoulder and right shoulder impingement. In a separate claim, appellant filed a traumatic injury claim (Form 

CA-1) alleging that on January 23, 2018 she injured her right shoulder when lifting tubs of mail and casing mail while 

in the performance of duty. OWCP assigned that claim OWCP File No. xxxxxx944, and accepted it for bicipital 

tendinitis of the right shoulder, unspecified sprain of right shoulder joint, and sprain of ligaments of the cervical spine.

It administratively combined OWCP File Nos. xxxxxx846, xxxxxx623, and xxxxxx944, with the latter designated as 

the master file.
3

diagnosed whiplash injury to the neck, sprain of the ligaments and joints, and cervical spondylosis 

due to an accident that occurred on June 9, 2020. He noted that appellant was totally disabled. In 

a duty status report (Form CA-17) of even date, Dr. Gu related that on June 9, 2020 appellant 

sustained whiplash injury to the neck while at work. He noted clinical findings of moderate left 

paracentral disc herniation at C3-C4 and diagnosed sprain of the joints and ligaments of other parts 

of the neck. Dr. Gu returned appellant to full-time modified-duty work on December 5, 2020,

sitting eight hours a day and lifting limited to 10 pounds.

On January 7, 2021 OWCP referred appellant, the case file, a statement of accepted facts 

(SOAF), and a series of questions to Dr. Noubar A. Didizian, a Board-certified orthopedist, for a 

second opinion examination. It requested his opinion on appellant’s employment-related 

conditions, disability and whether she continued to suffer from residuals of herwork-related injury 

and whether she was capable of returning to gainful employment.

In a January 26, 2021 report, Dr. Didizian related appellant’s complaints of right trapezius 

pain, neck stiffness, and occasional headaches. Findings on physical examination revealed normal 

gait pattern, no winging of the scapula, no paraspinal spasm, intact scapulothoracic articulation 

with no crepitation or dyskinesis, soreness over the right trapezius, negative Spurling test, no 

trigger points, negative superior labral tear from anterior to posterior (SLAP) test, and excellent 

mobility with no crepitation in the right shoulder or neck. Dr. Didizian indicated that upper 

extremity motor, sensory, and reflexes were intact, and negative Tinel’s, Phalen’s, and Adson’s

compression tests. He noted with regard to OWCP File No. xxxxxx846, the accepted sprain of the 

ligaments of the cervical spine was resolved with no objective residuals present. Dr. Didizian

noted that there was no evidence of limitation of range of motion, crepitation, or cervical root 

irritation. He indicated that appellant responded well to the medial branch blocks and did not have 

any radicular pain. With regard to OWCP File No. xxxxxx944, the accepted bicipital tendinitis, 

right shoulder, sprain of the right shoulder, sprain of the ligaments of the cervical spine, were

resolved. Dr. Didizian noted that there were no objective findings on examination. With regard 

to OWCP File No. xxxxxx623, he reported that the accepted right shoulder disorder of the bursa 

and tendon were resolved. Dr. Didizian noted that examination revealed no evidence of ongoing 

pathology or residuals. He noted that the diagnosed whiplash injury to the neck, radiculopathy, 

and cervical spondylosis responded well to the intra-articular injections and at the time of his 

examination were resolved. Dr. Didizian did not find evidence of radiculopathy and noted that 

cervical spondylosis was a radiologic diagnosis indicating arthritis in the neck that was attributed 

to age-related changes. He opined that based on the clinical examination the whiplash injury was 

resolved, there was no evidence of bicipital tendinitis, bursitis, impingement, or ligamentous injury 

of the neck and shoulder. Dr. Didizian returned appellant to her prior employment without 

restriction. In an accompanying work capacity evaluation (Form OWCP-5c), he indicated that 

appellant was capable of returning to her usual job without restriction.

OWCP continued to receive evidence. In Forms CA-17 dated February 4 and 26, 2021,

Dr. Gu noted that appellant sustained a whiplash injury to the neck on June 9, 2020. He noted 

clinical findings of moderate left paracentral disc herniation at C3-C4 and diagnosed sprain of the 

joints and ligaments of other parts of the neck. Dr. Gu returned appellant to work on February 5, 

2021, with restrictions of sitting eight hours a day and lifting limited to 10 pounds. In a note dated 

February 26, 2021, he diagnosed cervical whiplash syndrome and recommended radiofrequency 
4

ablation at C3 and C4. Dr. Gu returned appellant to modified-duty workwith no repetitive activity, 

bending, stooping, kneeling or squatting, and a lifting restriction of 10 pounds.

By notice dated March 12, 2021, OWCP advised appellant that it proposed to terminate 

appellant’s wage-loss compensation and medical benefits as she no longer had disability or 

residuals causally related to her accepted employment injuries. It found, based on Dr. Didizian’s 

report, that she had no current disability and no medical residuals requirin g further treatment. 

OWCP afforded her 30 days to submit additional evidence or argument challenging the proposed 

termination. 

OWCP subsequently received additional evidence. In reports dated February 26 and 

March 26, 2021, Dr. Gu treated appellant in follow up after a series of intra-articular injections

performed on November 19, 2020 and February 4, 2021. Appellant reported only temporary relief 

in symptoms and indicated that the pain returned. She continued to complain of radicular pain in 

the back of the head and jaw and down the right shoulder and shoulder blade with numbness and 

tingling in the hand. Dr. Gu diagnosed whiplash injury to the neck, sprain of joints and ligaments 

of other parts of neck, cervical spondylosis without myelopathy and recommended radiofrequency 

ablation. In a note dated March 26, 2021, he diagnosed cervical whiplash syndrome and

recommended radiofrequency ablation at C3 and C4. Dr. Gu returned appellant to modified-duty

work with no repetitive activity, bending, stooping, kneeling or squatting, and a lifting restriction 

of 10 pounds.

In a report dated March 29, 2021, Dr. Gu noted reviewing Dr. Didizian’s January 26, 2021 

report and disagreed with his findings. He indicated that appellant sustained a whiplash injury 

from a work-related motor vehicle accident that occurred on June 9, 2020 and continued to have 

residuals from this injury. Dr. Gu advised that whiplash syndrome was a chronic condition. He 

reported performing two intra-articular injections on November 19, 2020 and February 4, 2021,

which provided temporary relief and advised that appellant was scheduled to have a medial branch 

radiofrequency ablation procedure on April 12, 2021. Dr. Gu indicated that appellant required 

work restrictions of lifting limited to 10 pounds, additional physical therapy, and modified duty as 

a result of her work-related injuries.

By decision dated April 20, 2021, OWCP finalized the proposed notice of termination of 

appellant’s wage-loss compensation and medical benefits, effective the same day, finding that

Dr. Didizian’s second opinion represented the weight of the evidence.

On May 3, 2021 appellant, through counsel, requested an oral hearing before a

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

August 12, 2021.

OWCP received additional evidence, including a report documenting that on February 4, 

2021 Dr. Gu performed right C3 and C4 medial branch block and diagnosed cervical facet 

arthropathy. Similarly, on May 10, 2021, he performed radiofrequency ablation of the right C3 

and C4 medial branch and diagnosed cervical spondylosis and cervical sprain. Dr. Gu treated 

appellant on June 18, 2021, who related that her neck pain was almost gone. He noted diagnoses 

and indicated that appellant reached maximum medical improvement (MMI). On August 13, 2021

appellant reported returning to work in July 2021 and her neck pain returned. Dr. Gu diagnosed 
5

whiplash injury to the neck, sprain of joints and ligaments of other parts of neck, cervical 

spondylosis without myelopathy and opined that appellant could not tolerate her job. He

recommended a functional capacity evaluation (FCE).

By decision dated October 25, 2021, OWCP’s hearing representative affirmed the 

April 20, 2021 decision.

OWCP received additional evidence. On June 4, 2021 Dr. Gu diagnosed whiplash injury 

to the neck, sprain of joints and ligaments of other parts of neck, and cervical spondylosis without 

myelopathy. He noted that appellant underwent C3-C4 cervical medial branch radiofrequency 

ablation on May 10, 2021, which provided excellent neck pain relief. Dr. Gu returned appellant 

to modified-duty work. In a note dated June 4, 2021, he returned appellant to modified-duty work

with lifting limited to 25 pounds. Similarly, in a note dated June 18, 2021, Dr. Gu diagnosed 

whiplash injury and advised that appellant reached MMI and would be referred for an FCE.

Dr. Nirav Shah, a Board-certified neurosurgeon, evaluated appellant on June 10, 2022 for 

headaches, pain in the neck and lower back, and radiation to all extremities. He provided a history 

of injury on June 9, 2020 and diagnosed cervical disc disorder with myelopathy, concussion 

without loss of consciousness, postconcussion syndrome, cervicalgia, radiculopathy of the cervical 

region, and injury to lumbar spinal cord. Dr. Shah recommended additional diagnostic studies and 

a back brace.

On June 27, 2022 appellant, through counsel, requested reconsideration. In a separate letter 

of even date, counsel requested that appellant’s claim be expanded to include C3-C4 disc 

herniation.

By decision dated July 1, 2022, OWCP denied modification of the October 25, 2021

decision. It further denied expansion of the acceptance of appellant’s claim, finding that the 

medical evidence of record was insufficient to establish that a C3-C4 disc herniation condition was

causally related to the accepted June 9, 2020 employment injury.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that he or she is an employee of the United 

States within the meaning of FECA, that the claim was filed within the applicable time limitation, 

that an injury was sustained while in the performance of duty as alleged, and that any disability or 

specific condition for which compensation is claimed is causally related to the employment injury.5

4

Supra note 2.

5

See C.W., Docket No. 17-1636 (issued April 25, 2018).
6

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.6

Causal relationship is a medical question that requires medical opinion evidence to resolve 

the issue.7 The opinion of the physician must be based on a complete factual and medical 

background, must be one of reasonable certainty, and must be supported by medical rationale 

explaining the nature of the relationship between the diagnosed condition and the accepted 

employment injury.8

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.”

9

 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.10

ANALYSIS -- ISSUE 1

The Board finds that the case is not in posture for decision with regard to expansion of the 

acceptance of the claim.

The evidence of record establishes that a conflict in medical opinion evidence exists 

between Dr. Didizian, the second opinion physician, and Dr. Gu, appellant’s treating physician, as 

to whether her claim should be expanded to include additional conditions as causally related to the 

accepted employment injury. In his January 26, 2021 report, Dr. Didizian found, based on his 

clinical examination, that there were no objective findings to support ongoing residuals or 

pathology from appellant’s accepted sprain of the ligaments of the cervical spine, sprain of the 

joints and ligaments of other parts of the neck, cervical whiplash, bicipital tendinitis, bursitis, 

impingement, or ligamentous injury of the neck and shoulder. He asserted that all work-related 

conditions were resolved, and any ongoing symptomology was secondary to arthritis in the neck 

that was attributed to age-related changes. Dr. Didizian determined that appellant could return to 

full-duty work, eight hours a day without restrictions. 

Appellant’s treating physician, Dr. Gu, however, submitted reports through August 13, 

2021, wherein he noted that he continued to treat appellant for worsening symptoms related to a 

whiplash injury to the neck, sprain of joints and ligaments of other parts of neck, cervical 

spondylosis without myelopathy, and left paracentral disc herniation at C3-C4. He opined that 

these conditions were sequelae of the accepted June 9, 2020 employment injury. Appellant 

6 K.T., Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

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

8

Id.

9

5 U.S.C. § 8123(a).

10 C.W., Docket No. 18-1536 (issued June 24, 2019).
7

reported continued radicular pain in the back of the head and jaw and down the right shoulder and 

shoulder blade with numbness and tingling in the hand, and noted marked worsening of her

condition. He indicated that appellant continued to have residuals from the work-related motor 

vehicle accident that occurred on June 9, 2020, and continued to undergo nerve block procedures

and a medial branch radiofrequency ablation procedure on April 12, 2021. Dr. Gu indicated that 

appellant required work restrictions of lifting limited to 10 pounds, additional physical therapy, 

and modified-duty work as a result of her work-related injuries.

An unresolved conflict in medical opinion exists between the opinions of Dr. Didizian, 

OWCP’s referral physician, and Dr. Gu, appellant’s treating physician, as to whether appellant 

established expansion of the acceptance of the claim.

11

 As a conflict remains in the medical 

evidence with regard to expansion of the acceptance of the claim, the Board finds that OWCP has 

not met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits.

LEGAL PRECEDENT -- ISSUE 2

Once OWCP has accepted a claim it has the burden of justifying termination or 

modification of compensation benefits.12 It may not terminate compensation without establishing 

that the disability ceased or that it was no longer related to the employment.13 OWCP’s burden of 

proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper 

factual and medical background.14

ANALYSIS -- ISSUE 2

As explained above, OWCP undertook development of the medical record to determine 

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

but it did not complete that development. As the issue of expansion was not in posture for decision, 

the Board finds that OWCP failed to establish that appellant no longer had residuals or disability 

due to the accepted employment injury. Consequently, OWCP failed to meet its burden of proof 

to terminate appellant’s wage-loss compensation and medical benefits, effective April 20, 2021.

15

11 G.F., id.; S.S., Docket No. 19-1658 (issued November 12, 2020); C.W., Docket No. 18-1536 (issued 

June 24, 2019).

12 L.L., Docket No. 18-1426 (issued April5, 2019);C.C.,Docket No. 17-1158 (issued November 20, 2018); I.J., 59 

ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).

13 A.D., Docket No. 18-0497 (issued July 25, 2018). In general,the term disability under FECA means incapacity 

because of injury in employment to earn the wages which the employee was receiving at the time of such injury. See

20 C.F.R. § 10.5(f).

14 See R.P., Docket No. 17-1133 (issued January 18, 2018).

15 In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot. 
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CONCLUSION

The Board finds that the case is not in posture for decision with regard to expansion of the 

acceptance of the claim. The Board further finds that OWCP failed to meet its burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits, effective April 20, 2021.

ORDER

IT IS HEREBY ORDERED THAT the July 1, 2022 decision of the Office of Workers’

Compensation Programs is set aside in part and reversed in part. The case is remanded for further 

proceedings consistent with this decision of the Board. 

Issued: August 4, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board