United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.B., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

MEDICAL COMMAND, MADIGAN ARMY 

MEDICAL CENTER, JOINT BASE 

LEWIS-McCHORD, WA, Employer

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Docket No. 21-0555

Issued: March 4, 2022

Appearances: Case Submitted on the Record

Howard L Graham, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 24, 2021 appellant, through counsel, filed a timely appeal from a 

November 16, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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

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

ISSUE

The issue is whether appellant has established that the acceptance of her claim should be 

expanded to include additional or consequential conditions of major depression and anxiety, or a 

cognitive disorder as a result of her accepted November 21, 2013 employment injury.

FACTUAL HISTORY

On December 13, 2013 appellant, then a 62-year-old social services assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on November 21, 2013 she sustained a right 

shoulder strain with rotator cuff tearing when moving a large cabinet to retrieve documents which 

had fallen from the printer while in the performance of duty. She did not initially stop work. 

OWCP accepted the claim for right shoulder and upper arm acromioclavicular sprain, right 

shoulder and arm rotator cuff sprain, right rotator cuff tear, and subsequently expanded acceptance 

of the claim to include consequential conditions of right shoulder stress fracture and right shoulder 

rotator cuff tear or rupture.

4

OWCP paid appellant wage-loss compensation on the supplemental rolls as of 

February 5, 2014. On June 28, 2016 it granted her a schedule award for 12 percent permanent 

impairment of the right upper extremity for 37.44 weeks from April 12 through

December 30, 2016. OWCP paid appellant wage-loss compensation on the periodic rolls as of 

October 15, 2017. 

OWCP authorized a right shoulder arthroscopic rotator cuff repair, and biceps tendon repair 

surgery, which occurred on February 7, 2014, a right shoulder rotator cuff repair and removal of 

foreign body from humeral head, which occurred on January 23, 2015, and a right total shoulder 

arthroplasty, which occurred on April 17, 2017. On October 4, 2018 appellant underwent an 

OWCP authorized surgery for removal of right support implant. 

In a letter dated November 20, 2018 appellant, through counsel, requested that the 

acceptance of appellant claim be expanded to include additional conditions of major depression 

and anxiety. In support of her request, appellant submitted a neuropsychological evaluation dated 

March 9, 2016 from Philip Tate, Ph.D. and licensed clinical psychologist, which noted her mild 

neurocognitive disorder and moderate-to-severe major depression. Dr. Tate related that she had 

moderate-to-severe symptoms of depression that worsened during the holidays due to her 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that,following the November 16, 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.

4 Appellant retired from the employing establishment effective April30, 2015. 
3

daughter’s death four years prior. He also related that it was possible that depression and chronic 

pain from appellant’sindustrial injury adversely affected her auditory working memory somewhat, 

but would not account for her deficits in visual and spatial memory. OWCP also received a work 

capacity evaluation psychiatric/psychological conditions form (Form OWCP-5a) dated

November 15, 2018 from Vanessa J. Honn, Ph.D. and clinical psychologist, who noted severe 

depression and anxiety, with chronic stress related to physical disability as a significant factor 

contributing to depression and anxiety. In a work capacity evaluation musculoskeletal conditions 

form (Form OWCP-5c) dated November 14, 2018 Dr. Matthew Jenkins, a Board-certified 

orthopedic surgeon, related appellant’s permanent restrictions due to her accepted right shoulder 

condition. 

On January 3, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questions, to Dr. Michael Friedman, an osteopath and Board-certified 

psychiatrist, for a second opinion examination. It requested that he address whether she suffered 

from an emotional condition that was a direct and natural result of her accepted work conditions. 

OWCP also requested that Dr. Friedman evaluate whether any diagnosed cognitive disorder was 

an aggravation of a preexisting condition, and if so whether the aggravation was temporarily or 

permanently aggravated by appellant’s employment-related conditions. In a report dated 

February 12, 2019, Dr. Friedman reviewed her history of injury and medical reports of record. He 

diagnosed mild neurocognitive disorder due to multiple factors, generalized anxiety disorder, 

recurrent-moderate major depressive disorder, and predominant somatic symptoms disorder, pain 

persistent. Dr. Friedman opined that appellant did not suffer from an employment-related 

emotional condition. He also opined that her mild neurocognitive disorder was unrelated to her 

employment injury and had not been aggravated by her accepted employment injury. 

By decision dated March 8, 2019, denied appellant’s request to expand the acceptance of 

her claim to include major depression and anxiety, or a cognitive disorder as causally related to 

her November 21, 2013 work injury. 

In a report dated March 20, 2019, John A. Ernst, Ph.D. and clinical neuropsychologist, 

detailed treatment provided and attributed appellant’s neurocognitive functioning to medical and 

psychosocial factors. 

On April 6, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on August 16, 2019. 

In a report dated September 27, 2019, Dr. Honn agreed with Dr. Friedman’s diagnoses of 

mild neurocognitive disorder due to multiple factors, generalized anxiety diso rder, somatic 

symptoms disorder, recurrent major depressive disorder-of-moderate severity, and persistent 

predominant pain. She opined that appellant “suffers from the consequencesshoulder injury in 

2013 and subsequent surgical treatment of this injury as well as limited use of [appellant’s] right 

arm as a result of the injury have contributed substantially to the diagnosed conditions mentioned 

above.” While appellant’s depression and anxiety were preexisting conditions, Dr. Honn

explained that the severity of these conditions had dramatically increased due to appellant’s pain, 

loss of self-esteem after appellant stopped working, and financial worries. She noted that at the 

time of appellant’s injury her depression was not disabling. Dr. Honn disagreed with

Dr. Friedman’s opinion that appellant’s diagnosed cognitive disorder had not been aggravated by 
4

appellant’s employment injury. In support of her opinion, she explained that appellant’s pain and 

distress due to the shoulder injury appeared very distracting for appellant, decreased her capacity 

for functional cognitive capacity, and reduced her capacity to be gainfully employed. 

By decision dated October 31, 2019, OWCP’s hearing representative found an unresolved 

conflict in the medical opinion evidence between Dr. Honn and Dr. Friedman on the issue of 

whether appellant’s preexisting depression and anxiety, or cognitive impairment had been 

aggravated by the November 21, 2013 work injury. She vacated the March 8, 2019 decision and

remanded the case to OWCP for referral to an impartial medical examiner (IME). 

On November 1, 2019 OWCP referred appellant along with the medical record, a SOAF, 

and series of questions to Dr. Douglas Robinson, a Board-certified psychiatrist, to resolve the 

conflict in the medical opinion evidence between Drs. Honn and Friedman. Dr. Robinson was 

asked by OWCP to address whether appellant had sustained any emotional condition that was a 

natural and direct result of her accepted employment injury. OWCP also asked him to address 

whether her cognitive disorder was an aggravation of a preexisting condition and if so whether this 

condition was temporary or permanent. 

In a report dated October 13, 2020, Dr. Robinson noted appellant’s complaints of 

depression and worsening cognitive loss. Appellant related that she first became aware of her 

emotional problems before she retired. According to her she had cognitive problems at the time 

of her injury, which she described as lapses of memory such as being unable to recall personal data

or her PIN number. Dr. Robinson diagnosed bereavement, possible history of major depressive 

disorder currently resolved, and history of panic disorder, currently in remission. He noted a 

history of depression beginning in 1981 when appellant’s brother died. At the date of the 

examination, Dr. Robinson found no symptoms of depression, but noted that it was clear that her 

bereavement over her daughter’s death, who died in 2011 from breast cancer, was substantial. He 

reported appellant’s cognitive functioning appeared normal during his examination and there was 

no evidence of any symptoms of depression. Based on his review of the records, Dr. Robinson 

noted that her cognitive problems began in 2014 and were aggravated by her anxiety and panic 

attacks. He opined that appellant’s panic attacks were unrelated to any pain from her accepted 

work injuries because they tend to occur intermittently over the course of an individual’s life. 

Thus, Dr. Robinson concluded that her panic attacks were unrelated to her work injury with an 

unknown cause, which he opined that was most likely biological. 

By decision dated November 16, 2020, OWCP denied appellant’s request to expand the 

acceptance of her claim to include consequential conditions of major depression and anxiety, or a 

cognitive disorder. 
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.5

To establish causal relationship between a condition and the employment event or incident,

the employee must submit rationalized medical opinion evidence based on a complete factual and 

medical background, supporting such a causal relationship.6 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

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 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. 8

In a case where a preexisting condition involving the same part of the body is present and 

the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the 

physician must provide a rationalized medical opinion that differentiates between the effects of the 

work-related injury or disease and the preexisting condition.9

ANALYSIS

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

acceptance of her claim should be expanded to include additional or consequential conditions of 

major depression and anxiety, or a cognitive disorder as causally related to the accepted 

November 2, 2013 employment injury.

OWCP found a conflict in the medical opinion evidence between appellant’s treating 

physician, Dr. Honn, who opined that appellant’s preexisting emotional and cognitive disorders

had been aggravated by the November 21, 2013 employment injury, and its second opinion 

5

See D.E., Docket No. 20-0936 (issued June 24, 2021); S.L., Docket No. 19-0603 (issued January 28, 2020);T.E., 

Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August15, 2018); JajaK. Asaramo, 

55 ECAB 200 (2004).

6

See D.E., id.; S.L.,id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7

See D.E., id.; S.L.,id.; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued 

October 11, 2018).

8 B.P., Docket No. 19-1376 (issued January 4, 2021); K.S.,Docket No. 17-1583 (issued May 10, 2018).

9 M.O., Docket No. 18-0229 (issued September 23, 2019); J.F., Docket No. 19-0456 (issued July 12, 2019); Federal 

(FECA) Procedure Manual, Part 2 --Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
6

physician, Dr. Friedman, who opined that appellant’s preexisting major depression and anxiety,

and cognitive disorder were unrelated to her accepted November 21, 2013 employment injury. It 

properly referred appellant to Dr. Robinson, serving as the IME, to resolve the conflict, pursuant 

to 5 U.S.C. § 8123(a).

In his October 13, 2020 report, Dr. Robinson found that appellant’s major depression and 

anxiety, and cognitive disorder were not causally related to the accepted November 21, 2013

employment injury. He noted that her major depressive disorder began at the time of her brother’s 

death in 1981. Dr. Robinson reported no current symptoms of depression and normal cognitive 

functioning. He reported appellant’s first mention of panic attacks was in 2014. Dr. Robinson 

indicated that her cognitive problems began in 2014 and that they had been aggravated by her 

anxiety and panic attacks. He opined that appellant’s anxiety and cognitive issues were unrelated 

to any pain from her accepted work injuries. Dr. Robinson explained that panic attacks tend to 

occur intermittently over the course of an individual’s life and, thus, they were unrelated to her 

work injury. He opined that the panic attacks were due to an unknown cause which he opined was 

most likely biological. 

The Board finds that Dr. Robinson’s impartial medical examination report represents the 

special weight of the medical opinion evidence as his opinion is based on a proper factual and 

medical history, and his report contained a detailed summary of appellant’s complex medical and 

psychiatric history. Dr. Robinson addressed the medical records and provided his examination 

findings to reach a reasoned conclusion regarding her employment-related conditions.10 The 

Board, therefore, finds that his 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 

depression and anxiety, or a cognitive disorder due to her accepted employment injury.11 

Consequently, appellant has not met her burden of proof to expand the accepted conditions of her

claim.

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 establish that the 

acceptance of her claim should be expanded to include additional or consequential conditions of 

major depression and anxiety, or a cognitive disorder as a result of her accepted November 21, 

2013 employment injury.

10 F.A., Docket No. 20-1652 (issued May 21, 2021); K.V.,Docket No. 18-0947 (issued March 4, 2019); MichaelS. 

Mina, 57 ECAB 379 (2006); Kathryn Haggerty, 45 ECAB 383 (1994) (the opportunity for and thoroughness of 

examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care 

of analysis manifested, and the medical rationale expressed in support of the physician’s opinion are facts, which 

determine the weight to be given to each individual report).

11 F.A., id; W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April4, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 4, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board