United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.J., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Philadelphia, PA, Employer

__________________________________________

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Docket No. 23-0764

Issued: January 22, 2024

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 3, 2023 appellant, through counsel, filed a timely appeal from a November 29, 

2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.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 November 29, 2022 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

ISSUE

The issue is whether appellant has met her burden of proof to expand the acceptance of her 

claim to include additional conditions as causally related to the accepted March 23, 2018 

employment injury.

FACTUAL HISTORY

On March 26, 2018 appellant, a 46-year-old trust fund specialist, filed a traumatic injury 

claim (Form CA-1) alleging that on March 23, 2018 she slipped and fell while in the performance 

of duty. She claimed injuries to her left shoulder, right hand, back and knees. Appellant stopped 

work on March 26, 2018. 

In an April 26, 2018 statement, appellant further described the April 23, 2018 employment 

incident, noting that she fell to the concrete floor and cut her right hand. In reports from 

early-April 2018, Dr. Lisa J. Schaffer, an osteopath Board-certified in family medicine, diagnosed

left shoulder sprain and lumbar strain and excused appellant from work for various periods.

By decision dated May 30, 2018, OWCP denied appellant’s claim, finding that the

evidence of record was insufficient to establish causal relationship between the diagnosed 

conditions and the accepted March 23, 2018 employment incident. 

On June 14, 2018 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. Following a preliminary review, by decision dated 

October 5, 2018, OWCP’s hearing representative set aside the May 30, 2018 decision, finding that 

the case required additional development of the medical evidence. It remanded the case to OWCP

in order to prepare a detailed statement of accepted facts (SOAF), and refer appellant for a second 

opinion examination and evaluation regarding her claimed work injury.

Appellant submitted an October 23, 2018 report from Dr. Mark D. Allen, a Board-certified 

orthopedic surgeon, who reported physical examination findings, and opined that she sustained 

post-traumatic cervical sprain/strain, cervical radiculopathy, post-traumatic lumbosacral 

sprain/strain, lumbar radiculopathy, disc bulge at L3-4, disc protrusion at L4-5, post-traumatic left 

shoulder sprain/strain, and post-traumatic left knee contusion at the medial collateral ligament 

(MCL) as a direct result of the March 23, 2018 employment incident. 

On April 15, 2019 OWCP referred appellant, along with the medical record, a SOAF and 

a series of questions, for a second opinion examination and evaluation with Dr. Steven J. 

Valentino, an osteopath and Board-certified orthopedic surgeon. It requested that he comment on

whether appellant sustained an injury due the accepted March 23, 2018 employment incident.

In a May 7, 2019 report, Dr. Valentino reported physical examination findings, and 

diagnosed resolved post-traumatic cervical sprain/strain, cervical radiculopathy, post-traumatic

lumbosacral sprain/strain, lumbar radiculopathy, disc bulge at L3-4, disc protrusion at L4-5, posttraumatic left shoulder sprain/strain, andpost-traumatic left knee contusion with strain of the MCL. 

He noted that appellant’s subjective complaints were not validated by objective findings, and 

opined that the diagnostic study findings were consistent with age-appropriate degenerative 

changes and body habitus physiologic findings, rather than any acute or traumatic injury. 

Dr. Valentino indicated that, “[t]here was no precipitation, acceleration[,] or aggravation 
3

apportioned to the history of work-related injury.” He concluded that appellant recovered from 

her work-related injury and was capable of working in her preinjury position.

By decision dated October 21, 2019, OWCP accepted appellant’s claim for left knee

contusion, left knee sprain, and left shoulder joint sprain, all resolved. 

On November 4, 2019 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. Following a preliminary review, by 

decision dated January 24, 2020, OWCP’s hearing representative vacated the October 21, 2019 

decision finding that the SOAF provided to Dr. Valentino was deficient. The hearing 

representative remanded the case to OWCP to prepare an updated SOAF and request clarification 

from Dr. Valentino regarding the specific conditions that were causally related to the March 23, 

2018 work incident.

In a March 3, 2020 supplemental report, Dr. Valentino acknowledged that the left knee 

contusion, left knee sprain, and left shoulder joint sprain conditions delineated in the 

newly-provided SOAF were due to the March 23, 2018 employment incident, but found that 

appellant no longer had continuing work-related disability or residuals related to those accepted 

conditions.

By decision dated April 9, 2020, OWCP determined that the October 21, 2019 decision 

accepting several conditions as resolved would remain unchanged and found that appellant was 

not entitled to further benefits after April 9, 2020 as these conditions had resolved.

On April 18, 2020 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. Following a preliminary review, by decision dated 

August 12, 2020, OWCP’s hearing representative vacated the April 9, 2020 decision and 

remanded the case to OWCP to prepare a new SOAF and obtain a supplemental report from

Dr. Valentino. The hearing representative explained that OWCP failed to produce a complete 

SOAF that included appellant’s physical job duties.

On August 28, 2020 OWCP provided Dr. Valentino an updated SOAF and requested that 

he produce a supplemental opinion. In a September 15, 2020 supplemental report, Dr. Valentino 

found that appellant had recovered from the work-related left knee contusion, left knee sprain, and 

left shoulder joint sprain, and opined that the acceptance of her claim should not be expanded to 

include any additional conditions.

By decision dated November 16, 2020, OWCP denied expansion of the acceptance of 

appellant’s claim to include cervical sprain/strain, lumbosacral sprain/strain, cervical 

radiculopathy, lumbar radiculopathy, disc bulge at L3-4, and disc protrusion at L4-5. 

On November 23, 2020 appellant, through counsel, requested a hearing before a 

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

March 12, 2021. 

By decision dated May 26, 2021, OWCP’s hearing representative vacated the 

November 23, 2020 decision and remanded the case to OWCP for further development, finding 

that the SOAF provided to Dr. Valentino was deficient. It directed OWCP to update the SOAF to 

indicate whether appellant could be expected to perform law enforcement functions, and to refer 
4

her for a new second opinion examination/evaluation regarding whether the accepted conditions 

had resolved and whether she sustained additional conditions due to the accepted March 23, 2018

employment injury.

On July 22, 2021 OWCPprepared an updatedSOAF and referred appellant and the medical 

record, including a new SOAF and a series of questions, for an impartial medical examination with

Dr. Stanley R. Askin, a Board-certified orthopedic surgeon, to resolve a conflict in the medical 

opinion evidence between Dr. Allen and Dr. Valentino regarding whether the accepted conditions 

had resolved, and whether OWCP should expand the acceptance of appellant’s claim to include 

additional conditions. 

In an October 28, 2021 report, Dr. Askin, serving as the impartial medical examiner (IME),

discussed appellant’s factual and medical history and reported physical examination findings. He 

opined that she had age-appropriate cervical and lumbar spondylosis and arthritis of both knees 

consequential to exogenous obesity, unrelated to the March 23, 2018 employment injury. 

Dr. Askin opined that the accepted conditions had fully resolved and that appellant’s subjective 

complaints corresponded with her exogenous obesity as the explanation for her continuing medical 

problems.

In a November 9, 2021 report, Dr. Allen opined that appellant’s conditions of unresolved 

post-traumatic cervical and lumbar sprain/strain, lumbar disc protrusion, cervical and lumbar 

radiculopathy, left shoulder sprain, and left knee sprain were a direct result of the March 23, 2018 

employment incident.

By decision dated December 10, 2021, OWCP again denied expansion of the acceptance 

of appellant’s claim to include cervical sprain/strain, lumbosacral sprain/strain, cervical 

radiculopathy, lumbar radiculopathy, disc bulge at L3-4, and disc protrusion at L4-5. It based this 

determination on the opinion of Dr. Askin and also found that the accepted conditions of left knee

contusion, left knee sprain, and left shoulder joint sprain had resolved.

On December 20, 2021 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Following a preliminary review, by decision dated February 25, 2022, OWCP’s hearing 

representative vacated the December 10, 2021 decision, finding that there was no conflict in the 

medical opinion evidence at the time of the referral to Dr. Askin, noting that OWCP’s May 26,

2021 decision directed appellant to be referred for a new second opinion examination. The hearing 

representative found that, while Dr. Askin’s opinion was not entitled to special weight, his opinion 

did qualify as that of a second opinion physician. OWCP’s hearing representative determined that

there was a new conflict in the medical opinion evidence between Dr. Allen and Dr. Askin 

regarding whether appellant’s accepted conditions had resolved and whether she sustained 

additional conditions causally related to the accepted March 23, 2018 employment injury. OWCP

was directed to refer appellant for an impartial medical examination/evaluation to resolve the 

conflict.

On March 22, 2022 OWCP referred appellant and the medical record, including a new 

SOAF and a series of questions, for an impartial medical examination with Dr.Robert B. Grob, an 

osteopath and Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion 
5

evidence regarding whether the accepted conditions had resolved and whether the acceptance of 

her claim should be expanded to include additional conditions. 

The case record contains a screenshot from the medical management application (MMA) 

system under the Integrated Federal Employees’ Compensation System (iFECS) documenting the 

selection of Dr. Grob. In addition, the record contains a March 22, 2022 Form ME023, a systemgenerated appointment notification report, showing that the MMA system had been successfully 

completed to select Dr. Grob. The bypass history, placed in the case record on March 22, 2022 

indicates that the only physician OWCP bypassed was Dr. Kevin Anbari, a Board-certified 

orthopedic surgeon, because he only saw patients for lower extremity issues and would not be able 

to offer an opinion on appellant’s left shoulder injury. This bypass record contains the “S” code

for the reason of the bypass. 

In a May 6, 2022 report, Dr. Grob discussed appellant’s factual and medical history, 

including the circumstances of her March 23, 2018 employment injury and subsequent medical 

treatment. He reported the findings of his physical examination, noting that there was no 

tenderness to deep palpation of the cervical spine and that both upper extremities were 

neurovascularly intact. There were no signs of impingement in the shoulders and the negative 

drop test was negative bilaterally. Dr. Grob advised that appellant exhibited tenderness between

L4 and S1 in the lumbar spine, but the straight leg testing was negative bilaterally. Appellant did 

not exhibit tenderness or medial/lateral instability in her knees. Dr. Grob discussed diagnostic 

testing of her cervical spine, left shoulder, lumbar spine, and left knee. He opined that, apart from 

the accepted conditions of left knee contusion, left knee sprain, and left shoulder joint sprain, 

appellant did not sustain any work-related injuries of the lumbar and cervical spine. Dr. Grob 

opined that her lumbar and cervical spine conditions were preexisting and degenerative in nature,

and not related to any injury that occurred on March 23, 2018. He further determined that the 

March 23, 2018 employment injury did not aggravate or exacerbate appellant’s preexisting lumbar 

spine and cervical spine conditions as the mechanism of the March 23, 2018 employment injury 

would not support such aggravation or exacerbation. Dr. Grob maintained that the present 

treatment of her cervical spine and lumbar spine was “related to a progressive degenerative 

condition compounded by [appellant’s] age and history of morbid obesity.” He opined that 

appellant had fully recovered from the March 23, 2018 employment injury, noting that she did not 

exhibit any positive objective findings of the accepted work-related conditions during his physical 

examination which would substantiate any further treatment. Appellant was capable of returning 

to work in a full-duty capacity without restrictions. 

By decision dated June 10, 2022, OWCP again denied expansion of the acceptance of the 

claim to include the additional diagnoses of cervical sprain/strain, lumbosacral sprain/strain, 

cervical radiculopathy, lumbar radiculopathy, disc bulge at L3-4, and disc protrusion at L4-5.

On June 20, 2022 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. A hearing was held on October 18, 2022. At the 

hearing, counsel questioned whether Dr. Grob was properly selected as a referee physician. He 

further argued that, in the event that Dr. Grob were found to have been properly selected, the case 

should be remanded for clarification of Dr. Grob’s report to comment on lumbar spine magnetic 

resonance imaging (MRI) scans dated June 29, 2021 and August 19, 2022, which reflected

minimal change from 2018. Counsel argued that Dr. Grob should be asked to explain why there 

has been no real change in the intervening years after the traumatic injury and comment on the 

new evidence.
6

After the hearing, appellant submitted MRI scans of the lumbar spine dated June 29, 2021 

and August 19, 2022, as well as discharge instructions dated April 13 and June 29, 2022 from

Dr. Amit Doshi, a Board-certified anesthesiologist.

By decision dated November 29, 2022, OWCP’s hearing representative affirmed OWCP’s 

June 10, 2022 decision.

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.4 The medical evidence required to establish causal 

relationship between a specific condition, and the employment injury is rationalized medical 

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

background of appellant, 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 accepted employment injury.

5

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 impartial medical specialist) who shall 

make an examination.6 For a conflict to arise, the opposing physicians’ opinions must be of 

virtually equal weight and rationale.7 In situations where the case is properly referred to an 

impartial medical specialist 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.8

The MMA system provides for a rotation among potential impartial medical specialists 

from the American Board of Medical Specialties, including the medical boards of the American 

Medical Association, and those physicians Board-certified with the American Osteopathic 

Association.9 Upon proper entry of appointment information, the MMA system prompts the 

medical scheduler to prepare a Form ME023 (appointment notification report) for imaging into the 

4

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., 

Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004). 

5

See E.J., Docket No. 09-1481 (issued February 19, 2010).

6

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August30, 2021); R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

7 P.R., Docket No. 18-0022 (issued April 9, 2018).

8

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 

ECAB 1010 (1980).

9 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter.500.5a 

(May 2013).
7

case file. The Form ME023 serves as documentary evidence supporting that the referee 

appointment was properly scheduled through the MMA rotational system. 10

The MMA contains an automatic and strict rotational scheduling feature. This application 

provides for consistent rotation among physicians and records the information needed to document 

the selection of the physician.11 The services of all available and qualified Board-certified 

specialists will be used as far as possible to eliminate any inference of bias or partiality. This is 

accomplished by selecting physicians (in the designated specialty in the appropriate geographic 

area) in alphabetical order as listed in the roster and repeating the process until the list is 

exhausted.12 OWCP’s procedures provide valid reasons for bypassing physicians. If the case 

requires a different subspecialty, or if the physician does not evaluate the specific body part or 

extremity, the physician can be bypassed with the “S” code and another physician can be 

contacted.13 Selection of a referee physician should be made only through the MMA (absent 

exceptional circumstances) and OWCP may not dictate which physician will serve as a referee 

examiner. The Board has placed great importance on the appearance as well as the fact of 

impartiality in selecting an impartial medical examiner, and only if the selection procedures 

designed to achieve impartiality are scrupulously followed may the selected physician carry the 

special weight accorded to an impartial medical specialist.14

ANALYSIS

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

of her claim to include additional conditions causally related to the accepted March 23, 2018 

employment injury.

Preliminarily, the Board finds that OWCP determined that there was a conflict in the 

medical opinion between Dr. Allen, an attending physician and Dr. Askin, an OWCP referral 

physician, on the issue of whether appellant sustained conditions causally related to the accepted 

March 23, 2018 employment injury other than those already accepted by OWCP. 15 

In order to resolve the conflict, OWCP referred appellant, pursuant to section 8123(a) of 

FECA, to Dr. Grob for an impartial medical examination and an opinion regarding her expansion 

claim.

16

 

10 Id. at Chapter 3.500.5h, i (May 2013). 

11 Id. at Chapter 3.500.5 (May 2013).

12 Id. at Chapter 3.500.4b(6) (July 2011).

13 Id. at Chapter 3.500.6 (July 2011).

14 S.A., Docket No. 20-1168 (issued March 29, 2023); C.E., Docket No. 19-1923 (issued March 30, 2021).

15 See supra notes 8 and 9.

16 See supra note 8.
8

The case record contains a screenshot from the MMA system under the iFECS

documenting the selection of Dr. Grob.

17

 In addition, the case record contains a March 22, 2022 

Form ME023, a system-generated appointment notification report which denotes that the MMA

system had been successfully completed according to the procedures designed to ensure the 

random nature of the selection process.18

The bypass history in this case, placed in record on March 22, 2022 indicates that the only 

physician OWCP bypassed was Dr. Anbari because he only saw patients for lower extremity 

issues, and would not be able to offer an opinion on appellant’s left shoulder injury. The bypass 

record contains the “S” code, which according to OWCP’s procedures is the code for a valid bypass 

if the case requires a different subspecialty, or if the physician does not evaluate the specific body 

part or extremity.19 Therefore, OWCP properly followed procedure when it bypassed Dr. Anbari. 

For the above-detailed reasons, the record reflects that the MMA system was properly used to 

randomly select Dr. Grob as an impartial medical specialist.

The Board finds that the special weight of the medical evidence is represented by the 

thorough, well-rationalized opinion of Dr. Grob.20 The May 6, 2022 report of Dr. Grob establishes 

that appellant did not sustain additional conditions causally related to the accepted March 23, 2018 

employment injury other than those already accepted by OWCP.

In his May 6, 2022 report, Dr. Grob opined that, apart from the accepted conditions of left 

knee contusion, left knee sprain, and left shoulder joint sprain, appellant did not sustain any workrelated injuries of the lumbar and cervical spine. He found that her lumbar and cervical spine 

conditions were preexisting and degenerative in nature, and not related to any injury that occurred 

on March 23, 2018. Dr. Grob further determined that the March 23, 2018 employment injury did 

not aggravate or exacerbate appellant’s preexisting lumbar spine and cervical spine conditions,

because the mechanism of the March 23, 2018 employment injury would not support such 

aggravation or exacerbation. He maintained that the present treatment of her cervical spine and 

lumbar spine was “related to a progressive degenerative condition compounded by her age and 

history of morbid obesity.” 

The Board has reviewed the opinion of Dr. Grob and notes that it has reliability, probative 

value, and convincing quality with respect to its conclusions regarding the relevant issue of the 

present case. Dr. Grob’s opinion provided a thorough factual and medical history, and accurately 

summarized the relevant medical evidence. In addition, he provided a proper analysis of the 

factual and medical history and the findings on examination, including the results of diagnostic 

testing, and reached conclusions regarding appellant’s condition, which comported with this 

analysis.21 Dr. Grob provided medical rationale for his opinion by explaining that her claimed 

17 See supra notes 11 through 16.

18 See supra note 12.

19 See supra note 15.

20 See supra note 10.

21 See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the 

importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical 

history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion). 
9

additional work-related conditions were due to the nonwork-related causes, including the natural 

progression of her preexisting degenerative conditions.

On appeal counsel has argued that OWCP should remand the case in order to have Dr. Grob 

address the fact that lumbar spine MRI scans dated June 29, 2021 and August 19, 2022 revealed 

minimal change from diagnostic testing obtained in 2018. However, as noted above, Dr. Grob 

found that appellant’s lumbar and cervical spine problems constituted preexisting degenerative 

conditions that were unrelated to the March 23, 2018 employment injury. 

For these reasons, the medical evidence of record is insufficient to establish the expansion 

of the acceptance of appellant’s claim to include the additional diagnoses of cervical sprain/strain, 

lumbosacral sprain/strain, cervical radiculopathy, lumbar radiculopathy, disc bulge at L3-4, and 

disc protrusion at L4-5.

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 expand the acceptance 

of her claim to include additional conditions causally related to the accepted March 23, 2018 

employment injury.
10

ORDER

IT IS HEREBY ORDERED THAT the November 29, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 22, 2024

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board