United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Fort Worth, TX, Employer

__________________________________________

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Docket No. 22-0591

Issued: August 30, 2022

Appearances: Case Submitted on the Record

Diana Dawson, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 11, 2022 appellant, through his representative, filed a timely appeal from an 

October 15, 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 appellant has met his burden of proof to expand the acceptance of his 

claim to include additional medical conditions causally related to his accepted employment 

injuries.

FACTUAL HISTORY

This case has previously been before the Board.

3

 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On August 13, 1994 appellant, then a 37-year-old mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a lumbar strain as a result of standing for a 

prolonged periodswhile in the performance of duty.4 He stopped work on August 1, 1994. OWCP 

accepted the claim for right sacroiliac strain.5

By decision dated December 14, 2011, OWCP expanded acceptance of the claim to include 

displacement of lumbar intervertebral disc without myelopathy; venous embolism and thrombosis 

of deep vessels of the proximal lower extremity; pulmonary embolism and infarction.

On March 11, 2015 Dr. Ira O. Murchinson, an attending osteopathic family practitioner, 

requested expansion of the acceptance of appellant’s claim to include left hip, right knee, right 

ankle, and right foot sprains due to weakness or impairment caused by his accepted work-related 

injury. He opined that the additional diagnosed conditions were secondary to appellant’s overuse 

of his right knee, ankle, and foot and left hip while performing various activities to compensate for 

his accepted work-related lumbar condition. Dr. Murchison concluded that appellant’s right knee 

and ankle and left hip injuries resulted from an abnormal gait pattern he had used since his original 

back injury.

In an April 22, 2015 medical report, Dr. Mohamed Hassan Yousef, a Board-certified 

physiatrist, opined that appellant sustained left hip, right knee, right ankle, and right foot sprains

as a consequence of his accepted employment injury. He noted that appellant reported overuse of 

his right leg and left hip to compensate for his accepted lower back injury.

3 Docket No. 03-1263 (issued July 28, 2003).

4 Appellant has a prior claim for a January 28, 1993 traumatic injury accepted for right sacroiliac strain under 

OWCP File No. xxxxxx978.

5 By decision dated December 12, 2013, OWCP granted appellant a schedule award for six percent permanent 

impairment of the left lower extremity. In a September 30, 2014 decision, an OWCP hearing representative set aside 

the December 12, 2013 schedule award decision and remanded the case for further development of the medical 

evidence to determine permanent impairment to the lungs and issuance of a de novodecision. In a February 2, 2015 

decision, OWCP granted appellant a schedule award for 17 percent permanent impairment of the lungs for the period 

December 12, 2014 through March 7, 2015. On February 6, 2015 it amended its February2, 2015 decision and issued 

a corrected decision granting appellant a schedule award for 17 percent permanent impairment of the lungs.
3

OWCP, in a development letter dated December 17, 2015, requested that appellant submit 

additional factual evidence explaining how he injured his left hip, right knee, right ankle, and right 

foot. It afforded him 30 days to submit the necessary evidence.

On February 25, 2016 OWCP referred appellant’s case to Dr. Herbert White, Jr., a Boardcertified orthopedic surgeon and OWCP district medical adviser (DMA). It requested that

Dr. White review the medical evidence of record, including Dr. Yousef’s April 22, 2015 report, 

and provide an opinion regarding whether the acceptance of appellant’s claim should be expanded 

to include left hip, right knee, right ankle, and right foot sprains.

In a March 20, 2016 report, Dr. White opined that appellant’s left hip, right knee, right 

ankle, and right foot sprains were not due to overuse syndrome resulting an abnormal gait due to

lumbar back pain. He advised that it was more likely than not that his conditions were due to 

degenerative changes that occurred with aging and bilateral lumbar radiculopathy resulting from 

his lumbar disc disease.

By decision dated May 18, 2016, OWCP denied the expansion of the acceptance of 

appellant’s claim, finding that the medical evidence of record was insufficient to establish that the 

additional diagnosed left hip and right knee, right ankle, and right foot sprains were causally related 

to the accepted employment injury.

On June 16, 2016 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review.

In a subsequent undated letter, appellant contended that his claimed additional conditions 

were causally related to the accepted employment injury. He submitted a series of medical reports 

and diagnostic test studies dated from August 3, 1994 through December 15, 2016, which 

addressed his right foot, right knee, left hip, lumbar spine, right pelvis, right leg conditions, work

capacity, and work restrictions.

Following a preliminary review, by decision dated January 3, 2017, an OWCP hearing 

representative set aside the May 18, 2016 decision, finding that there was a conflict in the medical 

opinion evidence between Dr. Murchison and Dr. White regarding whether appellant had 

sustained left hip, right knee, right ankle, and/or right foot conditions as a consequence of his 

accepted employment injury.

On August 4, 2017 OWCP referred appellant to Dr. James S. Hood, a Board-certified 

orthopedic surgeon, for an impartial medical examination to resolve the conflict of medical 

evidence. In a report dated May 15, 2017, Dr. Hood opined that appellant’s original injury was a 

simple uncomplicated lumbar sprain, that in probability resolved uneventfully. Dr. Hood opined 

that all of appellant’s original complaints had resolved and that he underwent an ill-advised 

discogram, which led to discitis and pulmonary embolism. He concluded that appellant’s 

complaints of pain in the left hip, right knee, right ankle, and right foot were notrelated to his 1994 

injury and subsequent treatments. These complaints were age-related, incidental, and coincidental. 

Dr. Hood also related that appellant had significant underlying medical issues. In a supplemental 

report dated June 9, 2017, he reiterated his prior findings and conclusions.
4

On February 22, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), the medical record, and a series of questions, to Dr. John Sklar, a Board-certified 

physiatrist, for a second opinion examination.

In an April 5, 2018 report, Dr. Sklar noted that he examined appellant on April 3, 2018. 

He reported findings on his physical examination and diagnosed chronic lower back pain right side 

greater than left with degenerative change affecting both lower extremities consistent with 

appellant’s age of 60 years old. Dr. Sklar saw no evidence that substantiated a diagnosis of hip, 

knee, ankle, or foot sprains affecting either lower extremity causally related to the accepted 

employment injury.

OWCP, by decision dated April 19, 2018, denied expansion of appellant’s claim to include 

left hip, right knee, right ankle, and right foot sprains based on Dr. Sklar’s second opinion report

as the weight of the medical evidence.

On May 23, 2018 appellant requested a telephonic hearing before an OWCP hearing 

representative, which was held on November 14, 2018.

By decision dated October 3, 2019, a second OWCP hearing representative set aside the 

April 19, 2018 decision, finding that there was an unresolved conflict of medical opinion between

Drs. White and Sklar and Dr. Murchison regarding whether appellant sustained additional 

conditions causally related to his accepted employment injury. He noted that OWCP had failed to 

refer appellant to an impartial medical specialist as instructed by the prior OWCP hearing 

representative. The hearing representative remanded the case to OWCP for referral of the case

record, including an updated SOAF that reflected all the accepted conditions, and appellant to an 

IME to resolve the outstanding conflict.

On February 26, 2021 OWCP referred appellant to Dr. Hood for an impartial medical 

examination, to resolve the conflict of medical opinion evidence.

6

In a March 17, 2021 letter, Dr. Hood noted he had reviewed appellant’s medical history 

and records. He also noted he had previously examined him on May 10, 2017. Dr. Hood related 

appellant’s complaints of back pain, right greater than left; bilateral knee pain; and foot pain. He 

related extensive physical examination findings. Dr. Hood diagnosed degenerative disc disease in 

the lower back that was age related and opined that the diagnosed condition had absolutely nothing 

to do with the accepted 1994 employment injury. Based on all the information and his review of 

the records, he advised that appellant had nothing more than a lumbar sprain with no signs of 

radiculopathy. Dr. Hood again noted appellant’s ill-advised discogram and resultant discitis,

which required additional treatment, and two bouts of pulmonary embolism which occurred many 

6 The Board notes that OWCP had previously referred appellant to Dr.Hood for an impartial medical examination 

on several occasions to resolve the conflict in medical opinion regarding whether the acceptance of appellant’s claim 

should be expanded to include additional left hip, right knee, right foot, and right ankle conditions. On October 29, 

2020 OWCP issued a notice of proposed suspension of compensation and medical benefits for failure to attend the 

impartial medical examination appointment on October 22, 2020 with Dr.Hood as directed. On January 8, 2021 

appellant requested that OWCP reschedule his appointment with Dr.Hood. In an undated letter, appellant indicated 

that he would not be attending the scheduled appointment with Dr. Hood on January 17, 2021 due to inclement 

weather.
5

years ago. Regarding appellant’s bilateral knee condition, he indicated that appellant had never 

sustained an injury (damage or harm) to either knee. Appellant did not fall or twist his knees or 

initially complained about knee pain. Dr. Hood found abundant clinical and radiographic evidence 

of age-related degenerative joint disease bilaterally, which was neither caused nor aggravated by 

the 1994 employment injury. Regarding the “sacroiliac shear,” he indicated that this was none

other than a sacroiliac sprain. Dr. Hood noted that the sacroiliac joint was not movable. He 

maintained that at times, there may be an injury to the ligaments with inflammation and pain, but 

nothing else. Dr. Hood maintained that with 100 percent certainty, the accepted sacroiliac joint

sprain would have resolved in a short and finite time period. He further maintained with 100 

percent certainty that the sacroiliac joint condition would not/could not produce leg length 

discrepancy. Dr. Hood confirmed that appellant had a congenitally short tibia but, related that the 

reason for this condition was unknown. Additionally, he saw no radiographs of the lower 

extremities to rule out tibial hemimelia. Dr. Hood advised that none of appellant’s current 

conditions were related to his 1993 or 1994 employment injuries. He disagreed with

Dr. Murchison’s opinion that appellant sustained right knee, right ankle, and right foot strains, and 

left hip sprain as a consequence of his work-related injuries.

OWCP, by decision dated April 21, 2021, denied expansion of the acceptance of 

appellant’s claim to include the additional diagnoses of sprain of the left hip and right knee, right 

ankle, and right foot. It found that the special weight of the medical evidence rested with the 

March 17, 2021 opinion of Dr. Hood, the IME.

On May 21, 2021 appellant requested a review of the written record and an oral hearing 

before an OWCP hearing representative.

Following a preliminary review, by decision dated July 26, 2021, a third OWCP hearing 

representative set aside the April 21, 2021 decision and remanded the case to OWCP to 

administratively combine the current case, OWCP File No. xxxxxx440, with OWCP File No. 

xxxxxx978. OWCP was instructed to update the SOAF and then refer the combined case record 

to Dr. Hood for a supplemental report and any other further development as deemed necessary, to 

be followed by a de novo decision.

On August 5, 2021 OWCP requested File No. xxxxxx978 from the Federal Records Center 

(FRC). In response, the FRC indicated that it had destroyed the requested case file. Thereafter, 

OWCP completed a revised SOAF that included File Nos. xxxxxx440 and xxxxxx978.

By letter dated August 27, 2021, OWCPrequested thatDr. Hood review the updated SOAF 

and provide a supplemental report pertaining to expansion of the claim for any of the conditions 

of sprain of the left hip, right knee, right ankle, and right foot.

In a September 7, 2021 addendum letter, Dr. Hood opined that appellant’s diagnosed 

conditions of left hip, right knee, right ankle, and right foot sprains were not causally related to the 

accepted employment injuries.

OWCP, by decision dated October 15, 2021, continued to deny expansion of the 

acceptance of appellant’s claim. It found that the special weight of the medical evidence rested 

with Dr. Hood’s September 7, 2021 addendum report.
6

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.7

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

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

medical background, supporting such a causal relationship.8 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.9

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.”

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 exist opposing reports of virtually equal 

weight and rationale and the case is referred to an impartial medical examiner (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

The Board notes that OWCP has been delegated authority under FECA in the selection of 

a medical referee physician through section 8123(a). Under the Federal (FECA) Procedure 

Manual, the Director has exercised discretion to implement practices pertaining to the selection of 

the impartial medical referee. Unlike second opinion physicians, the selection of referee 

physicians is made from a strict rotational system.13 OWCP will select a physician who is qualified 

in the appropriate medical specialty and who has no prior connection with the case.14 Physicians 

7

See 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).

8

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

9

See M.M., Docket No. 19-0061 (issued November 21, 2019); P.M.,Docket No. 18-0287 (issued 

October 11, 2018).

10 5 U.S.C. § 8123(a).

11 D.H., Docket No. 19-0687 (issued March 31, 2021); T.J., Docket No. 20-0721 (issued November 17, 2020).

12 S.T., Docket No. 16-1911 (issued September 7, 2017); G.B., widow of R.B., Docket No. 16-1363 (issued March 2, 

2017); Darlene R. Kennedy, 57 ECAB 414 (2006); GloriaJ. Godfrey, 52 ECAB 486 (2001).

13 Federal (FECA) Procedure Manual, Part 3 --Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

14 Id. at Chapter 3.500.4(b)(1).
7

who may not serve as impartial specialists include those employed by, under contract to, or 

regularly associated with federal agencies;15 physicians previously connected with the claim or 

claimant or physicians in partnership with those already so connected;16 and physicians who have 

acted as a medical consultant to OWCP.17

ANALYSIS

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

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

Dr. Murchison and Drs. White and Sklar regarding whether appellant’s left hip, right knee, right 

ankle, and right foot sprains were causally related to the accepted employment injury. 

On February 26, 2021 OWCP referred appellant to Dr. Hood to resolve the conflict of 

medical opinion regarding expansion of appellant’s claim. In a March 17, 2021 letter, Dr. Hood 

noted he had reviewed appellant’s medical history and records. He also noted that he had 

previously examined him on May 10, 2017. The record reflects that OWCP had previously 

received reports from Dr. Hood, dated May 15 and June 9, 2017, wherein Dr. Hood addressed 

whether acceptance of appellant’s claim should be expanded to include additional diagnoses 

related to appellant’s left hip, right knee, and right foot. OWCP continued to develop the claim 

following receipt of these reports from Dr. Hood. 

Pursuant to OWCP’s procedures, physicians previously connected with the claim or 

claimantmay not serve as an IME. As Dr. Hood had previously examined and evaluated appellant 

in 2017, he was not properly selected to serve as an IME in 2021 when appellant was referred to 

him for another IME examination. As Dr. Hood was improperly selected to serve as the IME in 

2021, his report is insufficient to resolve the conflict in medical opinion. 

The Board, therefore, finds that this case must be remanded for further development. On 

return of the case record, OWCP shall refer appellant for a new impartial medical evaluation, with 

a physician not previously connected to the claim. The IME shall resolve the conflict of medical 

opinion evidence as to whether appellant’s claim should be expanded to include additional 

diagnoses related to appellant’s left hip, right knee, and right foot. After such further development 

as necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

15 Id. at Chapter 3.500.4(b)(3)(a).

16 Id. at Chapter 3.500.4(b)(3)(b).

17 Id. at Chapter 3.500.4(b)(3)(c).
8

ORDER

IT IS HEREBY ORDERED THAT the October 15, 2021 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further development 

consistent with this decision of the Board. 

Issued: August 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board