United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

NEW YORK HARBOR HEALTH CARE

SYSTEM, New York, NY, Employer

__________________________________________

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Docket No. 22-0393

Issued: August 26, 2022

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 19, 2022 appellant, through counsel, filed a timely appeal from an August 24, 

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. 

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

ISSUE

The issue is whether OWCP met its burden of proof to find that the accepted conditions of 

right ribcage trauma/contusion, and internal derangement of the right wrist, right ankle, right hip, 

and lumbar spine had resolved as of February 8, 2021. 

FACTUAL HISTORY

On April 10, 2020 appellant, then a 30-year-old medical clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on April 9, 2020 she slipped stepping out of an elevator while in 

the performance of duty. She advised that she had reinjured her right shoulder, wrist/hand, and 

ankle and also injured her right hip and ribs. Appellant stopped work on April 9, 2020. OWCP 

assigned OWCP File No. xxxxxx218.3

In a development letter dated April 14, 2020, OWCP requested that appellant submit 

additional factual and medical evidence in support of her claim, including a report from her 

physician explaining how the described work incident caused or aggravated a medical condition. 

It provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the 

requested information.

On April 15, 2020 Dr. Howard I. Baum, a Board-certified orthopedic surgeon, evaluated 

appellant for pain in her right shoulder, right wrist, right ankle, right hip, and cervical spine. He 

noted that she had a history of a slip and fall at work on April 9, 2020 and had previously fractured 

her right wrist in 2019. Dr. Baum diagnosed internal derangement of the right shoulder, wrist, and 

ankle, right hip distortion, and internal derangement of the cervical spine. He opined that appellant 

was unable to work. 

An April 17, 2020 magnetic resonance imaging (MRI) scan of the right wrist demonstrated 

a triangular fibrocartilage complex (TFCC) tear. An MRI scan of the right shoulder of the same

date demonstrated supraspinatus and subscapularis tendinosis, hypertrophy of the 

acromioclavicular (AC) joint, thickening of the coracohumeral ligament consistent with adhesive 

capsulitis or a rotator interval injury, and new edema in the anterior fibers of the deltoid compatible 

with a grade 1 muscle tear. 

An MRI scan of the right ankle, obtained on April 22, 2022 demonstrated a severe bone 

contusion at the distal tip of the lateral malleolus, peroneal tenosynovitis, joint effusion, and a 

partial thickness tear of the deep fibers of the deltoid ligament. 

In a statement dated April 25, 2020, appellant described her work injury on April 9, 2020 

and noted that she had previously injured her right shoulder, right wrist/hand, right ankle, back, 

and knees in September 2019. She indicated that she had “multiple herniated discs[s]” in her neck 

and back and a cast on her right hand.

3 OWCP previously accepted that appellant sustained sprains of the right wrist, right ankle, both knees, and cervical, 

lumbar, and thoracic spine on September 10, 2019 to which it assigned OWCP File No. xxxxxx177. It paid her wageloss compensation for disability for the period October 28, 2019to February 26, 2021.
3

By decision dated May 26, 2020, OWCP denied appellant’s traumatic injury claim. It 

found that she had not established a medical condition causally related to the accepted April 9, 

2020 employment incident. 

On June 5, 2020 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Subsequently, OWCP received a progress report dated May 26, 2020 from Dr. Baum, who 

discussed appellant’s history of a fall at work on April 9, 2020 and of a wrist fracture in 2019. 

Dr. Baum diagnosed internal derangement of the right shoulder, wrist, ankle and hip, and cervical 

and central spine derangement. In a report of the same date, he diagnosed right knee internal 

derangement and a TFCC tear of the right wrist. 

An MRI scan of the cervical spine performed on June 3, 2020 demonstrated a more 

prominent disc bulge with increased anterior thecal sac impingement at C4-5, a new central disc 

herniation with an annual tear with increased anterior sac impingement at C5-6, and a stable disc 

bulge with impingement at C6-7.

On June 3, 2020 Dr. Baum advised that the April 22, 2020 MRI scan of the right ankle was 

“consistent with a post-traumatic intraosseous fracture” due to appellant’s April 9, 2020 fall. He 

further found that the MRI scan of the right shoulder demonstrated “new bone marrow edema and 

muscle tearing” and a new bone contusion of the right wrist due to her April 9, 2020 injury.

Dr. Baum further recommended MRI scans of the neck and back and noted that appellant might 

have a problem at C5-6.

In July 1 and 29, 2020 progress reports, Dr. Baum diagnosed cervical and lumbar 

derangement.4 

A telephonic hearing was held on August 17, 2020. Counsel noted that appellant had 

previously sustained an employment injury on September 10, 2019 assigned OWCP File No. 

xxxxxx177,and that imaging studies had established additional conditions due to the April 9, 2020 

work injury.

Subsequently, OWCP received an unsigned initial evaluation dated June 8, 2020 from

Dr. Shouhei Yamagami, an osteopath Board-certified in physical medicine and rehabilitation. 

Dr. Yamagami obtained a history of appellant slipping at work on April 9, 2020 and falling on her 

right side. He noted that she had a history of a prior injury on September 10, 2019 and was working 

part time with restrictions at the time of the April 9, 2020 incident. Dr. Yamagami diagnosed 

status post an employment-related slip and fall causing multiple injuries, cervical sprain/strain, 

cervical disc bulges from C4 to C7 with right C5 radiculopathy, thoracic sprain/strain, lumbar 

sprain/strain, a disc bulge at L5-S1 abutting the bilateral S1 nerve roots, right shoulder 

sprain/strain, and right ankle sprain/strain. He opined that appellant was totally disabled due to 

her injuries.

4

In an August 26, 2020 progress report, Dr.Baum diagnosed cervical and lumbar internal derangement and right 

shoulder derangement. 
4

In a statement received by OWCP on September 17, 2020 appellant related that on 

September 10, 2019 she had fallen on stairs at work, injuring her head, upper and lower back, right 

wrist and ankle, and bilateral knees. She advised that she subsequently returned to four hours of 

modified work. On April 9, 2020 appellant related that she had fallen getting off the elevator on 

a floor that had been buffed and waxed. 

By decision dated October 30, 2020, OWCP’s hearing representative set aside the May 26, 

2020 decision. He found that the June 3, 2020 report from Dr. Baum and June 8, 2020 report from

Dr. Yamagami, were sufficient to warrant further development of the claim. The hearing 

representative noted that Dr. Baum had diagnosed right wrist and shoulder conditions and a 

possible injury at C5-6. He further advised that Dr. Yamagami had provided multiple 

employment-related diagnoses, including cervical sprain/strain and disc bulges from C4 to C7 with 

right radiculopathy as demonstrated by electrodiagnostic testing. The hearing representative 

instructed OWCP to obtain a copy of the electrodiagnostic testing, administratively combine the 

current file number with OWCP File No. xxxxxx177, prepare a statement of accepted facts 

(SOAF), and refer appellant for a second opinion physician to determine whether she had sustained 

a medical condition causally related to the accepted April 9, 2020 employment incident.

Thereafter, OWCP received electrodiagnostic studies dated July 9, 2020 showing right 

C5-6 radiculopathies and dated July 23, 2020 showing right S1 radiculopathy.

5

 

On February 8, 2021 OWCP referred appellant to Dr. Leon Sultan, a Board-certified 

orthopedic surgeon, for a second opinion examination regarding whether she had sustained a 

medical condition causally related to the accepted April 9, 2020 employment incident. It provided 

him with a SOAF describing the September 10, 2019 and April 9, 2020 employment injuries, a 

series of questions, and noted that she had resumed modified work for four hours per day on 

November 11, 2019. 

In a report dated February 8, 2021, Dr. Sultan discussed appellant’s history of injuries 

occurring on September 10, 2019 and April 9, 2020, and provided his review of the medical reports 

of record. He noted that she currently experienced soreness in her right shoulder, right ribcage, 

right hip, right wrist pain, right ankle pain with walking, and intermittent low back pain. On 

examination Dr. Sultan found no swelling or atrophy of the right wrist or hand, strong grip 

strength, and normal sensation. For the right ribcage, he found no impairment in inspiration and 

expiration and negative anterior posterior and lateral compression tests. Dr. Sultan further found 

normal range of motion of the right hip and ankle with no complaints on palpitation and normal 

thoracolumbar findings. He diagnosed “soft tissue trauma to the right shoulder, right ribcage, right 

wrist, thoracolumbar spine, right hip and right ankle with residuals low grade right shoulder posttraumatic and postoperative adhesive capsulitis.” Dr. Sultan attributed the conditions to 

appellant’s slip and fall exiting the elevator on April 9, 2020. He related that she had “essentially 

recovered” from her September 10, 2019 work injury, but that the April 9, 2020 employment 

incident had resulted in new injuries. Dr. Sultan opined that appellant’s right ribcage, right wrist, 

mid and lower back, right hip, and right ankle conditions had resolved, but that she still had 

5 Appellant continued to submit progress reports from Dr.Baum. 
5

residuals of her right shoulder injury. He advised that she could perform limited-duty employment

and that her current restrictions arose due to her April 9, 2020 employment incident.

On February 22, 2021 OWCP advised appellant that it had accepted her claim for resolved 

internal derangement of the right wrist, ankle, and hip, resolved right ribcage trauma/contusion, 

resolved internal derangement of the lumbar spine. It determined that the date of resolution for 

the above-listed conditions was February 8, 2021, the date of Dr. Sultan’s report. OWCP further 

accepted that appellant sustained internal derangement of the right shoulder. 

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

representative of OWCP’s Branch of Hearings and Review on the February 22, 2021 decision. 

In a report dated March 10, 2021, Dr. Yamagami reviewed appellant’s history of injuries 

on September 10, 2019 and April 9, 2020. He noted that she continued to have bilateral knee pain. 

Dr. Yamagami diagnosed multiple injuries after a September 10, 2019 slip and fall at work, 

bilateral knee chondromalacia, sprain/strain and internal derangement of the cervical, thoracic, and 

lumbar spine, right C5 radiculopathy now under another case, a right wrist sprain/strain and TFCC 

tear as part of the second case, and right ankle sprain/strain and a bone contusion as part of the 

second case. He opined that appellant was totally disabled due to her injuries.

On April 21, 2021 Dr. Baum diagnosed derangement of the right shoulder and cervical and 

lumbar spine. He questioned whether appellant could perform light-duty work.

In an April 22, 2021 report, Dr. Yamagami provided examination findings and again found 

that appellant had sustained multiple injuries on April 9, 2020. He diagnosed an exacerbation of 

preexisting myofascial derangement of the cervical spine with increased anterior thecal sac 

impingement and a worsening C4-5 disc bulge, a new disc herniation, an annual tear at C5-6, an 

exacerbation of preexisting right C5 radiculopathy, myofascial derangement of the thoracolumbar 

spine with a stable disc bulge at L5-S1 abutting the bilateral S1 nerve roots and straightening the 

lumbar lordosis indicating muscle spasm, an exacerbation of a previously injury to the right 

shoulder with supraspinatus and subscapularis tendinosis, hypertrophy of the AC joint, and new 

edema in the anterior fibers of the deltoid after arthroscopy surgery, an exacerbation of a prior 

injury to the right wrist with a new bone contusion, persistent marrow edema of the trapezium, and 

a TFCC tear, an exacerbation of a prior right ankle injury with a severe bone contusion of the distal 

lateral malleolus, peroneus synovitis, and a partial-thickness tear of the deltoid ligament, a right 

rib contusion, post-traumatic exacerbations of migraines, right medial epicondylitis due to 

decompensation, and right leg pain likely due to radiculopathy. Dr. Yamagami recommended 

continued physical therapy and continued to opine that appellant remained totally disabled due to 

her injuries. He noted that she had undergone an independent examination and that the physician 

found that she had reached maximum medical improvement in all areas, but the right shoulder and 

could resume work without restrictions. Dr. Yamagami noted his disagreement with this finding, 

and opined that appellant was “still totally disabled, and the orthopedic specialist is also in 

agreement with this.” 

On May 5, 2021 Dr. Jack Choueka, a Board-certified orthopedic surgeon, diagnosed a 

chronic right TFCC injury and recommended surgery. 
6

A telephonic hearing was held on June 11, 2021. Counsel noted that her physician had 

requested authorization for a right wrist arthroscopy. He challenged the finding that the accepted 

conditions had resolved and requested that acceptance of the claim be expanded to include injuries 

to the cervical spine. Counsel maintained that Dr. Sultan had not adequately addressed the issue 

of appellant’s cervical condition. He further asserted that acceptance of the claim should be 

updated to include an acute TFCC injury that had not yet resolved. 

In a report of work status (Form CA-3), the employing establishment indicated that 

appellant had returned to full-time work with restrictions on July 6, 2021. 

By decision dated August 24, 2021, OWCP’s hearing representative affirmed the 

February 22, 2021 decision. The hearing representative found that the evidence was insufficient 

to establish that, except for her right shoulder, appellant had continuing medical conditions.

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.6 After it has determined that, an employee 

has disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing that the disability has ceased or that it is no longer related to 

the employment.7 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.8 The right to medical benefits 

for an accepted condition is not limited to the period of entitlement for disability. 9 To terminate 

authorization for medical treatment, OWCP must establish that appellant no longer has residuals 

of an employment-related condition, which would require further medical treatment.10

Section 8123(a) provides that, 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.11

ANALYSIS

The Board finds that OWCP has not met its burden of proof to find that the accepted 

conditions of right ribcage trauma/contusion and internal derangement of the right wrist, right 

ankle, right hip, and lumbar spine had resolved as of February 8, 2021.

6 R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

7 A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

8 C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

9 E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).

10 A.J., Docket No. 18-1230 (issued June 8, 20200); R.P., Docket No. 18-0900 (issued February 5, 2019).

11 5 U.S.C. § 8123(a); L.T.,Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 

317 (1994).
7

In a report dated February 8, 2021, Dr. Sultan, an OWCP referral physician, reviewed 

appellant’s complaints of pain in her right wrist, right ankle, right shoulder, right ribcage, right 

hip, and low back. He noted that she had sustained employment injuries on September 10, 2019 

and April 9, 2020. Dr. Sultan opined that appellant had recovered from her September 10, 2019 

work injury. He found that she had sustained soft tissue trauma of the right shoulder, right ribcage, 

right wrist, thoracolumbar spine, right hip, right ankle, and right shoulder post-traumatic and 

postoperative adhesive capsulitis due to her April 9, 2020 employment injury. Dr. Sultan 

concluded that appellant’s right ribcage, right wrist, mid and lower back, right hip, and right ankle 

conditions had resolved, but that she had residuals of her right shoulder injury. He opined that she 

could return to modified employment. 

On April 22, 2021 Dr. Yamagami indicated that appellant had sustained multiple injuries 

on April 9, 2020. He diagnosed myofascial derangement of the thoracolumbar spine with a disc 

bulge at L5-S1 abutting the bilateral S1 nerve roots, an exacerbation of a previously injury to the 

right shoulder with supraspinatus and subscapularis tendinosis, hypertrophy of the AC joint, a bone 

contusion and TFCC tear of the right wrist, a right ankle bone contusion peroneus synovitis, and a 

partial-thickness tear of the deltoid ligament, and a right rib contusion. Dr. Yamagami disagreed 

with Dr. Sultan’s finding that appellant had reached MMI except for her right shoulder. He further 

found that she was totally disabled.

Appellant’s treating physician and OWCP’s second opinion physician disagreed regarding 

whether her accepted right ribcage, right wrist, mid and lower back, right hip, and right ankle 

conditions had resolved such that she required no further medical treatment. Consequently, the 

Board finds that a conflict in medical opinion exists regarding this issue.12 OWCP should have 

resolved the conflict in medical opinion by referring appellant to a third physician serving as an 

impartial medical specialist.13 As it failed to resolve the conflict in medical opinion evidence, the 

Board finds that OWCP has not met its burden of proof to establish that she had no further 

employment-related residuals of her right ribcage trauma/contusion and internal derangement of 

the right wrist, right ankle, right hip, and lumbar spine effective February 8, 2021. 

On appeal counsel asserts that the evidence supported that appellant sustained cervical 

conditions as a result of the accepted employment injury. OWCP, however, has not issued a final 

decision on this issue. As discussed, the Board’s jurisdiction is limited to review of final adverse 

decisions issued by OWCP.14

CONCLUSION

The Board finds that OWCP has not met its burden of proof to find that the accepted 

conditions of right ribcage trauma/contusion and internal derangement of the right wrist, right 

ankle, right hip, and lumbar spine had resolved as of February 8, 2021.

12 See V.S., Docket No. 19-1792 (issued August4, 2020).

13 See A.A., Docket No. 21-0222 (issued November 17, 2021); C.S., Docket No. 21-0363 (issued August30, 2021).

14 20 C.F.R. §§ 501.2(c) and 501.3.
8

ORDER

IT IS HEREBY ORDERED THAT the August 24, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 26, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board