United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

U.S. POSTAL SERVICE, WILMINGTON BOX 

POST OFFICE, New Castle, DE, Employer

__________________________________________

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Docket No. 21-1401

Issued: July 20, 2023

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 23, 2021 appellant filed a timely appeal from March 31 and May 7, 2021 

merit decisions 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 May 7, 2021 decision, appellant submitted additional evidence to OWCP. 

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

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to rescind the acceptance 

of appellant’s claim for nondisplaced articular closed fracture of the head of the left femur; 

(2) whether OWCP has met its burden of proof to terminate appellant’s wage-loss compensation 

and medical benefits, effective December 6, 2020, as he no longer had disability or residuals 

causally related to his accepted September 5, 2018 employment injury; and (3) whether appellant 

has met his burden of proof to establish continuing disability or residuals causally related to his 

accepted September 5, 2018 employment injury on or after December 6, 2020.

FACTUAL HISTORY

On September 5, 2018 appellant, then a 56-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he sustained an injury to his left hip and buttocks 

when using a manual hand jack to move a pallet onto a lift while in the performance of duty. He 

worked intermittently thereafter.4

On September 11, 2018 Dr. Christopher Casscells, a Board-certified orthopedic surgeon,

treated appellant for left hip pain he attributed to a September 5, 2018 work injury when he was 

manually jacking up a large rack of magazines and felt a “pop” and groin pain on the left side. 

Appellant’s history was significant for arthritis in both hips and the right knee. Dr. Casscells’

findings on examination revealed irritability in the left hip and limited range of motion. He noted 

that an x-ray of the left hip revealed distortion of the femoral head, what appeared to be flattening 

of the femoral head or an articular surface fracture. Dr. Casscells diagnosed unilateral primary 

osteoarthritis of the left hip, closed articular fracture of the head of the left femur, and overexertion 

from strenuous movement or load. He recommended a left total hip replacement. An 

accompanying x-ray of the left hip revealed degenerative changes and moderate spurring from the 

periphery of the femoral head, which increased from a prior x-ray of March 24, 2017.5

In a development letter dated October 18, 2018, OWCP advised appellant of the 

deficiencies of his claim. It advised him of the additional evidence needed and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to respond.

4

In an undated separate statement, appellant explained that he was using a manual hand jack to load a bundle sorter 

onto the main lift, and he felt a “pop” in his left hip and experienced progressive pain.

5

In a September 5, 2018 authorization for examination and/or treatment (Form CA-16), the employing 

establishment authorized appellant to seek medical treatment. In Part B of the Form CA-16, attending physician’s 

report dated September 14, 2018, Dr.Casscells reported that appellant had a history of osteoarthritis of the left hip. 

He checked a box marked “Yes” indicating that the diagnosed conditions were caused or aggravated by the described 

employment activity. Dr. Casscells recommended a total left hip replacement. He opined that appellant was totally 

disabled from work from September 6, 2018 through January 1, 2019. The Board notes that a completed Form CA-16 

authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when 

properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay 

for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); 

J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
3

In response to the development letter, on October 25, 2018, appellant reported using a 

manual hand jack to move a pallet when he pumped the handle four or five times to lift the pallet 

and felt a “pop” in his left hip and immediate pain.

An x-ray of the left hip dated November 16, 2018 revealed stable early degenerative change 

with right acetabular roof spurring and a gentle levoscoliosis of the lumbar spine.

On December 4, 2018 OWCP accepted appellant’s claim for nondisplaced articular closed 

fracture of the head of the left femur.

On December 31, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) dated December 4, 2018, a copy of the case record, and a series of questions, to

Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, for a second opinion evaluation 

regarding the status of his employment-related conditions. In a January 16, 2019 report,

Dr. Hanley reviewed appellant’s history of injury and noted physical examination findings of 

discomfort with internal and external rotation and minor Trendelenburg-type limp. He diagnosed 

sprain/strain of the left hip with temporary aggravation of low-grade underlying degenerative 

arthritis. Dr. Hanley noted that there was no evidence to support the accepted nondisplaced 

articular fracture of the femoral head, which he believed was a misdiagnosis, rather, there was 

preexisting degenerative disease in the hip, which was temporarily aggravated. He opined that 

appellant no longer had residuals of his September 5, 2018 employment injury, but had discomfort 

due to the underlying degenerative arthritis of the left hip. Dr. Hanley advised that appellant could 

delay hip surgery because he was notshowing signs of ambulatory dysfunction. He further advised 

that the procedure would not be indicated as a consequence of the September 5, 2018 employment 

injury. Dr. Hanley indicated that appellant was fit for work activities as he was prior to the 

September 5, 2018 employment injury. In a work capacity evaluation form (Form OWCP-5c) of 

even date, he indicated that appellant could return to his regular job without restrictions. 

On February 6, 2019 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits because he no longer had disability or residuals causally related to his 

accepted September 5, 2018 employment injury. It found that the weight of medical evidence 

rested with the January 16, 2019 medical report of Dr. Hanley, OWCP’s second opinion physician, 

who found that appellant no longer had any disability or residuals causally related to his accepted 

September 5, 2018 employment injury. OWCP afforded appellant 30 days to submit additional 

evidence or argument, in writing, if he disagreed with the proposed termination.

OWCP received additional evidence. In reports dated July 24, 2015 and March 24, 2017,

Dr. Casscells diagnosed bilateral osteoarthritis of the hips and right knee and opined that appellant 

would eventually require hip replacements. In a November 20, 2018 report, he diagnosed longstanding and preexisting primary unilateral osteoarthritis of the left hip, which became unmasked 

and disabling following an injury at work where he lost a significant portion of articular cartilage. 

On March 19, 2019 Dr. Casscells noted hip irritability with possible tear of either the articular 

cartilage, the labrum, or both. He reviewed a magnetic resonance imaging (MRI) scan, which 

confirmed the presence of cam-type impingement of the femoral neck and acetabulum. 

Dr. Casscells advised that appellant had not recovered from his work-related left hip injury. He 

opined to a reasonable degree of medical probability that appellant’s employment injury was a 

significant triggering event leading to his disabling condition. In a work restriction form of even 

date, Dr. Casscells diagnosed arthritis, labral tear, and articular tear of the left hip. He noted that 
4

appellant was disabled from work due to his left hip injury and arthritis and required a left hip 

replacement.

An MRI scan of the left hip dated February 21, 2019 revealed suspected small focal vertical 

tear at the superior labrum of the left hip and cam-type impingement predisposing morphology of 

the femoral head due to small marginal osteophytes.

On March 20, 2019 OWCP provided Dr. Hanley with the February 21, 2019 MRI scan of 

the left hip and requested that he review the diagnostic study and state whether this study would 

change his findings from his January 16, 2019 report.

In a supplemental report dated March 29, 2019, Dr. Hanley reviewed the MRI scan of the 

left hip and advised that the articular surface fracture proposed by Dr. Casscells was completely 

ruled out by the MRI scan. He noted the MRI scan revealed a small focal vertical tear of the 

labrum. Dr. Hanley noted the existence of preexisting low-grade degenerative arthritis of the hip 

joint. He opined that there was no indication that the proposed left total hip replacement was the 

consequence of industrial exposure.

On April 8, 2019 Dr. Casscells noted that after the employment injury appellant had a great 

deal of irritability in the left hip indicating an accumulation of acute pressure inside the hip capsule. 

He opined that appellant’s hip condition did not resolve, which was an indication of discontinuity 

or fracture in the articular cartilage. Dr. Casscells opined that appellant’s work injury changed the 

trajectory of his hip condition resulting in a hip replacement. He disagreed with Dr. Hanley’s 

opinion that appellant returned to his preinjury baseline and did not require further treatment.

On April 9, 2019 OWCP found that a conflict in medical evidence existed between

Dr. Casscells, appellant’s treating physician, and Dr. Hanley, an OWCP second opinion examiner, 

with regard to the status of appellant’s accepted condition and his ability to return to work. It

referred appellant to Dr. John F. Perry, a Board-certified orthopedic surgeon, for an impartial 

medical examination to resolve the conflict of medical evidence. 

OWCP received additional evidence. It received an x-ray of the hips dated July 7, 2015

that revealed mild degenerative osteoarthritis of the left hip. An x-ray of the left hip dated 

March 24, 2017 revealed stable degenerative change. 

In a May 13, 2019 report, Dr. Perry noted his review of the SOAF, as well as the medical 

evidence of record. He acknowledged that the SOAF was binding for purposes of the examination 

and that all of his responses would adhere to that stricture. Upon examination of appellant’s left 

hip, his quality of motion was diminished consistent with degenerative arthritis, tenderness of 

palpation of the left hip capsule, and slight Trendelenburg lurch. Dr. Perry diagnosed primary 

osteoarthritis of the left hip, not work related. He disagreed with Dr. Casscell’s March 19, 2019 

report, and noted that he was unable to establish a joint surface fracture, a fracture of the femoral 

head, a fracture of an osteophyte, a fracture of the acetabulum, or an articular cartilage fracture. 

Dr. Perry opined that appellant did not have residuals of the accepted September 5, 2018 

employment injury and noted that the accepted employment injury was not established by MRI 

scan testing. He noted that the left hip replacement was medically necessary, but not causally 

related to the accepted September 5, 2018 employment injury. 
5

By decision dated June 18, 2019, OWCP finalized the termination of appellant’s wage-loss 

compensation and medical benefits, effective June 17, 2019. It found that the special weight of 

medical evidence rested with the May 13, 2019 report of Dr. Perry, the impartial medical examiner 

(IME).

On June 24, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. In a statement dated July 29, 2019,

counsel asserted that Dr. Hanley did not use the SOAF as the framework in forming his opinion 

and therefore his opinion was of diminished value. 

By decision dated August 9, 2019, an OWCP hearing representative, after a preliminary 

review, reversed the decision dated June 18, 2019. The hearing representative found that OWCP 

did not meet its burden of proof to terminate wage-loss compensation and medical benefits 

effective June 17, 2019, as neither the second opinion physician, Dr. Hanley, or the IME,

Dr. Perry, relied on the SOAF as the basis for their opinion. Therefore, Dr. Hanley and Dr. Perry’s 

reports were of diminished probative value, and not competent to constitute the weight of the 

evidence or to create a conflict in medical opinion.

On August 26, 2019 OWCP referred appellant, along with a SOAF and a series of 

questions, to Dr. Willie E. Thompson, a Board-certified orthopedic surgeon, for a second opinion 

evaluation. In a report dated September 17, 2019, Dr. Thompson described appellant’s 

employment injury and reviewed his medical history. Examination of the left hip revealed limited 

flexion, pain with positioning of the hip, and tenderness over the left groin. Dr. Thompson

diagnosed sprain of the left hip as it related to the September 5, 2018 employment injury with an 

MRI scan suspicious for a tear of the labrum. He advised that the SOAF noted a diagnosis of 

closed fracture of the left femoral head; however, this diagnosis was not supported by the medical 

records. Dr. Thompson advised that multiple imaging studies performed showed no evidence of 

a fracture of the femoral head. He indicated that appellant did not have residuals of the sprain to 

the hip incurred on September 5, 2018, rather, his present residuals related to preexisting 

degenerative arthritis of the left hip. Dr. Thompson further noted that the proposed surgical 

procedure was not in any way related to the accepted September 5, 2018 employment injury. In a 

Form OWCP-5c of even date, he noted that appellant reached maximum medical improvement 

(MMI) and could return to work without restrictions.

On October 7, 2019 Dr. Drew A. Brady, a Board-certified orthopedist, evaluated appellant 

for chronic left hip pain commencing after a September 5, 2018 employment injury. He diagnosed 

tear of the left acetabular labrum and primary osteoarthritis of the left hip and recommended left 

hip replacement surgery.

On October 8, 2019 OWCP requested an addendum report fromDr. Thompson referencing 

the SOAF that noted the claim was accepted for nondisplaced articular closed fracture of the head 

of the femur. It requested that he use the SOAF as the basis for his opinion and address the 

questions posed. On October 11, 2019 Dr. Thompson referenced x-rays of the left hip dated 

September 11 and November 16, 2018, which revealed degenerative joint disease of the left hip,

but no evidence of a fracture. He noted that he was unable to comment on an alleged diagnosis,

which did not exist and could not be supported by the medical records. Dr. Thompson noted the 

degenerative changes were age related and not due to trauma. He advised that the work-related 

injury resulted in nothing more than a sprain of the left hip and did not aggravate the arthritic 
6

condition. On November 1, 2019 OWCP sought further clarification from Dr. Thompson and 

requested that he address whether there were examination findings that support the presence of a 

labral tear, and if so, if the labral tear occurred as a result of the employment injury. In a 

November 18, 2019 report, Dr. Thompson reviewed the MRIscan of the left hip and indicated that 

it was not clear why the MRI scan of the left hip was performed as it did not relate to the accepted 

condition. He opined that this was an incidental finding that did not indicate a pathologic state as 

it related to the September 5, 2018 employment injury.

On December 13, 2019 OWCP requested Dr. Brady review the reports from Dr. Thompson 

and indicate whether he agreed or disagreed with his opinion and provide medical rationale for the 

opinion expressed. No response was received.

On January 22, 2020 OWCP notified appellant of its proposed rescission of the acceptance 

of his claim for nondisplaced articular closed fracture of the head of the left femur based on its 

error. It advised that Dr. Thompson’s reports represented the weight of the evidence. OWCP 

indicated that the objective evidence of record, specifically the x-ray findings, do not support

Dr. Casscell’s diagnosis of nondisplaced articular closed fracture of the head of the left femur and 

there was no objective basis to support this diagnosis as having been caused by the accepted 

September 5, 2018 employment injury. It afforded appellant 30 days to submit evidence and 

argument challenging the proposed rescission action.

OWCP received additional evidence. In a Form OWCP-5c dated January 30, 2020,

Dr. Brady noted that appellant was not capable of performing his usual job without restriction due 

to severe osteoarthritis of the left hip. He noted that appellant was pending surgery approval. In 

an attending physician’s report (Form CA-20) of even date, Dr. Brady diagnosed severe 

osteoarthritis and tear of the acetabular labrum and checked a box marked “Yes” indicating that 

appellant’s condition had been caused or aggravated by an employment activity. He indicated that 

appellant could not perform his job functions until after left hip replacement. 

On February 3, 2020 appellant through counsel responded to the proposed rescission and 

asserted that there was a conflict of medical opinion between Dr. Thompson and Dr. Casscells 

warranting further development in the form of an impartial medical examination.

On March 6, 2020 OWCP found that a conflict in medical evidence existed between

Dr. Casscells, appellant’s treating physician, and Dr. Thompson, an OWCP second opinion 

examiner, with regard to the status of appellant’s accepted condition and his ability to return to 

work. As such, on April 17, 2020, it referred appellant to Dr. Joseph Jelen, a Board-certified 

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

evidence.

OWCP received additional evidence. In a follow-up visit dated January 21, 2020,

Dr. Brady diagnosed primary osteoarthritis of the left hip, which was aggravated by a work injury. 

He recommended a total left hip replacement and indicated that appellant was totally disabled.

In a June 16, 2020 report, Dr. Jelen noted his review of the SOAF dated August 20, 2019, 

as well as the medical evidence of record. Upon examination appellant walked with a subtle limp, 

there was subtle weakness of the left calf muscle, discomfort with internal rotation of the left hip, 

and limited range of motion of the left hip. With regard to whether the nondisplaced articular 
7

closed fracture of the head of the left femur resolved, Dr. Jelen noted that based on x-rays and an 

MRI scan there was never a fracture, there was no accompanying bone marrow edema, and no 

evidence of avascular necrosis. He indicated that appellant did not have residuals of the accepted 

September 5, 2018 employment injury and advised that his symptoms were from preexisting 

degenerative arthritis of the hip. Dr. Jelen further noted that appellant did not have any aggravation 

of preexisting osteoarthritis of the left hip. He opined that the proposed total left hip replacement 

was not causally related to the accepted September 5, 2018 employment injury, but was 

recommended to treat his preexisting osteoarthritis of the left hip. Dr. Jelen indicated that no 

further treatment was warranted related to appellant’s work-related injury. He noted that the MRI 

scan of the left hip dated February 21, 2019 provided findings of a “suspected tear” and “subtle, 

thin, vertically oriented linear signal at the superior aspect of the left acetabular labrum,” which he 

interpreted as not worrisome. Dr. Jelen advised that appellant had no restrictions as a result of the 

accepted September 5, 2018 employment injury.

On August 6, 2020 OWCP requested an addendum report from Dr. Jelen clarifying what 

specific medical conditions resulted from the accepted September 5, 2018 employment injury and 

requested he provide objective evidence in support of his opinion and objective evidence that the 

September 5, 2018 employment injury had resolved. In an addendum report dated August 14, 

2020, Dr. Jelen noted that there was no significant injury to cause appellant’s symptoms. He 

referenced Dr. Casscells’ report, which described an “unmasking” not an injury and

Dr. Thompson’s statement that appellant sustained a sprain of the left hip. Dr. Jelen indicated that 

neither physician documented a significant injury. He noted that the pain appellant experienced 

was consistent with arthritis and not a specific work injury. Dr. Jelen opined that appellant 

developed discomfort in the left hip when he leaned forward and applied weight to his leg, there 

was no evidence that he used the lower extremity to actively pump the jack. He indicated that this 

finding was consistent with arthritis. Dr. Jelen noted that the September 5, 2018 incident served 

as an “unmasking” of arthritis or a “sprain” that resolved. He noted the diagnostic studies did not 

reveal an injury.

By decision dated September 16, 2020, OWCP rescinded its acceptance of appellant’s 

claim for nondisplaced articular closed fracture of the head of the left femur. It found that the 

opinion of Dr. Jelen constituted the special weight of the evidence. OWCP further indicated that 

the case was modified to reflect acceptance of sprain of the left hip, “only.”

On September 22, 2020 appellant, through counsel, requested an oral hearing before a 

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

January 15, 2021.

On September 30, 2020 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits because his September 5, 2018 employment injury had resolved. It found 

that the special weight of medical evidence rested with the June 16 and August 14, 2020 medical 

reports of Dr. Jelen, OWCP’s IME, who found that appellant no longer had any disability or 

residuals causally related to his accepted September 5, 2018 employment injury. OWCP afforded 

appellant 30 days to submit additional evidence or argument, in writing, if he disagreed with the 

proposed termination.

By decision dated November 10, 2020, OWCP finalized the termination of appellant’s 

wage-loss compensation and medical benefits, effective December 6, 2020. It found that the 
8

special weight of medical evidence rested with Dr. Jelen, the IME, who had determined in reports 

dated June 16 and August 14, 2020 that appellant did not have disability or residuals due to a workrelated sprain of the left hip.

OWCP received additional medical evidence. On October 26, 2020 Dr. Brady reevaluated 

appellant and diagnosed significant osteoarthritis of the left hip and recommended a left hip 

replacement. In a Form CA-20 dated November 4, 2020, he diagnosed primary osteoarthritis of 

the left hip and checked a box marked “Yes” indicating that appellant’s condition had been caused 

or aggravated by an employment activity. Dr. Brady indicated that appellant would benefit from 

a hip replacement and could return to light-duty work on October 26, 2020. 

On November 16, 2020 appellant, through counsel, requested an oral hearing before a 

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

March 10, 2021.

On February 10, 2021 Dr. Brady reported treating appellant for preexisting osteoarthritis 

of the left hip. Appellant reported that on September 5, 2018 he was manually jacking up a rack 

of magazines at work and felt a jerking maneuver to the left hip and had immediate groin pain. 

Dr. Brady noted that appellant’s left hip was irritable since this time and has not responded to

conservative treatment. He explained that the “up and down jacking and jerking motion caused 

an injury to the left hip.” Dr. Brady noted that because of the underlying osteoarthritis, appellant 

had raw bone surfaces uncovered by normal articular cartilage, which became aggravated by 

repeated jacking maneuvers while using the manual lifts. He opined that with a reasonable degree 

of medical certainty, but for the jacking incident at work, appellant would not need a left hip 

replacement. 

By decision dated March 31, 2021, an OWCP hearing representative affirmed the 

September 16, 2020 rescission decision.

By decision dated May 7, 2021, an OWCP hearing representative affirmed the 

November 10, 2020 termination decision.

LEGAL PRECEDENT -- ISSUES 1 & 2

Section 8128 of FECA6 provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application. 7 The Board 

has upheld OWCP’s authority to reopen a claim at any time on its own motion under section 8128 

of FECA and, where supported by the evidence, set aside or modify a prior decision and issue a 

new decision.8 The Board has noted, however, that the power to annul an award is not an arbitrary 

6

Supra note 2.

7

5 U.S.C. § 8128.

8 D.R., Docket No. 16-0189 (issued September 2, 2016).
9

one, and that an award for compensation can only be set aside in the manner provided by the 

compensation statute.9

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected in the discretion of the compensation agency and in conformity with statutory provision, 

where there is good cause for so doing, such as mistake or fraud.10 It is well established that, once 

OWCP accepts a claim, it has the burden of proof justifying termination or modification of 

compensation benefits. Its burden of proof justifying termination or modification of compensation 

holds true where it later decides that it erroneously accepted a claim. In establishing that its prior 

acceptance was erroneous, OWCP is required to provide a clear explanation of the rationale for 

rescission.11 Moreover, OWCP may not terminate compensation without establishing either that 

the disability has ceased or that it is no longer related to the employment. 12 Its burden of proof 

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

factual and medical background.13

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability compensation.14 To terminate authorization for medical treatment, 

OWCP must establish that the employee no longer has residuals of an employment-related 

condition, which require further medical treatment.15

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

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or IME) who shall make an examination. 16

This is called an impartial medical examination and OWCP will select a physician who is qualified 

in the appropriate specialty and who has no prior connection with the case. 17 When there exist 

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 wellrationalized and based upon a proper factual background, must be given special weight. 18

9

See 20 C.F.R. § 10.610.

10 See D.V., Docket No. 16-0849 (issued March 6, 2017); L.C., 58 ECAB 493 (2007).

11 L.G., Docket No. 17-0124 (issued May 1, 2018); W.H., Docket No. 17-1390 (issued April 23, 2018).

12 A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 

ECAB 734 (2003).

13 R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 

284 (1988).

14 L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

15 R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

16 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

17 20 C.F.R. § 10.321.

18 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
10

ANALYSIS -- ISSUES 1 & 2

The Board finds that OWCP has not met its burden of proof to rescind the acceptance of

appellant’s claim for nondisplaced articular closed fracture of the head of the left femur. The 

Board further finds that OWCP did not meet its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits for the accepted left hip sprain, effective December 6, 2020.

OWCP determined that a conflict in medical opinion arose between OWCP’s referral 

physician, Dr. Thompson, and appellant’s attending physician, Dr. Casscells. It properly referred 

appellant to Dr. Jelen for an impartial medical evaluation, pursuant to 5 U.S.C. § 8123(a). Based 

upon his report, OWCP rescinded its acceptance of employment-related nondisplaced articular 

closed fracture of the head of the left femur and terminated his wage-loss compensation and 

medical benefits, effective December 6, 2020 for the accepted left hip sprain.

The Board finds, however, that the impartial medical opinion of Dr. Jelen is insufficient to 

meet OWCP’s burden of proof because he provided no rationalized opinion in support of OWCP’s 

decision to rescind its acceptance of nondisplaced articular closed fracture of the head of the left 

femur, and to terminate appellant’s wage-loss compensation and medical benefits, effective 

December 6, 2020.

19

In his June 16, 2020 report, Dr. Jelen indicated, in response to OWCP’s question regarding 

whether appellant continued to have residuals of the accepted nondisplaced articular closed 

fracture of the head of the left femur, that based on x-rays and an MRI scan, there was never a 

fracture. He noted that appellant’s symptoms were completely from the preexisting degenerative 

arthritis of the hip, but he provided no specific rationale to support this opinion. When asked 

whether appellant had an aggravation of his preexisting osteoarthritis, Dr. Jelen responded that 

appellant did not have any aggravation of osteoarthritis and any potential injuries had subsided. 

In another portion of his report, he inferred that there was an employment-related aggravation of 

left hip osteoarthritis noting, “the potential aggravation has ceased now. There is no longer any 

residual of the work-related injury.” These portions render his opinion equivocal with respect to 

whether appellant actually suffered the accepted employment condition. The Board has held that 

an opinion which is equivocal regarding a given medical matter, is of limited probative value 

regarding that matter.20

Similarly, in an addendum report dated August 14, 2020, Dr. Jelen noted that there was no 

significant injury to cause appellant’s symptoms. He opined that the pain appellant experienced 

was consistent with arthritis, and not a specific employment injury. Dr. Jelen did not provide 

adequate medical rationale to explain the basis for his conclusion that appellant’s accepted 

employment duties did not cause or aggravate appellant’s left hip condition. He simply noted that 

appellant’s left hip condition was due to arthritis as opposed to the accepted employment factors, 

as related in the SOAF. Dr. Jelen did not explain how appellant’s osteoarthritic left hip condition 

19 See C.H., Docket No. 20-0194 (issued August26, 2021); D.C., Docket No. 10-2052 (issued August16, 2011);

George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified by 

medical rationale is of little probative value).

20 See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O Keefe, 14 ECAB 42, 48 (1962).
11

was solely due to nonoccupational factors.21 The Board has held that any contribution to 

appellant’s condition by the accepted employment factors would render his condition 

compensable.22 

For these reasons, Dr. Jelen’s opinion is not entitled to special weight as an IME. The 

Board finds, therefore, that OWCP has not met its burden of proof to rescind the acceptance of 

appellant’s claim for nondisplaced articular closed fracture of the head of the left femur, or to 

terminate appellant’s wage-loss compensation and medical benefits, effective December 6, 2020.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to rescind acceptance of 

appellant’s claim for nondisplaced articular closed fracture of the head of the left femur. The 

Board further finds that OWCP has not met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective December 6, 2020.

ORDER

IT IS HEREBY ORDERED THAT the March 31 and May 7, 2021 decisions of the 

Office of Workers’ Compensation Programs are reversed.23

Issued: July 20, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

21 See R.B., Docket No. 20-0109 (issued June 25, 2020); F.K.,Docket No. 19-1804 (issued April27, 2020); 

J.T., Docket No. 15-1923 (issued December 16, 2015).

22 See F.K., id.; J.B., Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 

2017); BethC. Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment 

factors to a diagnosed condition to establish causal relationship).

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