United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, FORT DIX POST 

OFFICE, Fort Dix, NJ, Employer

__________________________________________

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Docket No. 23-0513

Issued: September 28, 2023

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 1, 2023 appellant, through counsel, filed a timely appeal from a September 21, 

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 September 21, 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 right upper extremity conditions causally related to the accepted 

March 9, 2018 employment injury.

FACTUAL HISTORY

On March 12, 2018 appellant, then a 48-year-old custodian, filed a traumatic injury (Form 

CA-1) alleging that on March 9, 2018 she sprained her right knee, right elbow, right shoulder, and 

lower back when she slipped on a patch of ice and fell down onto her right arm, right shoulder, 

right hip, and right knee while in the performance of duty.4 She stopped work on March 9, 2018 

and returned to limited-duty work on March 12, 2018. By decision dated April 26, 2018, OWCP 

accepted the claim for cervical strain, lumbar strain, and contusion of the right elbow.

In a report dated May 4, 2018, Dr. Evan J. Conte, a Board-certified orthopedic surgeon, 

recounted appellant’s complaints of right elbow pain after she slipped at work and sustained a 

direct blow to the posterior medial side of the right elbow. He indicated thatshe developed new 

symptoms over the past few weeks, including numbness and weakness of the small finger, ring 

finger, and right arm. On physical examination of the right upper extremity, Dr. Conte observed 

intact sensation to light touch except for decreased sensation in the ulnar nerve distribution and 

positive Tinel’s sign at the medial epicondyle cubital tunnel area. He diagnosed right cubital tunnel 

syndrome and contusion of the right elbow.

A July 9, 2018 electromyography and nerve conduction velocity ((EMG/NCV) study 

demonstrated evidence of moderate-to-severe right ulnar nerve neuropathy at the elbow.

On October 24, 2018 appellant, through her attorney, requested the expansion of the 

acceptance of her claim to include right ulnar neuropathy.

By decision dated November 26, 2018, OWCP denied expansion of the acceptance of her 

claim to include right cubital tunnel syndrome and right ulnar neuritis. It found that the evidence 

of record did not demonstrate that the claimed medical conditions were related to the accepted 

March 9, 2018 employment injury.

On December 3, 2018 appellant, through counsel, requested a hearing before a 

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

April 9, 2019.

By decision dated May 21, 2019, OWCP’s hearing representative set aside the

November 26, 2018 decision, and remanded the case for further development of the medical 

evidence. 

4 OWCP assigned the current claim File No. xxxxxx890. Appellant subsequently filed another Form CA-1 on 

May 18, 2019 alleging that on the same date she sustained a left hand and wrist injury while in the performance of 

duty. OWCP assigned the claim OWCP File No. xxxxxx817 and accepted it for strain of muscle, fascia, and tendon 

of the left wrist and forearm. It has administratively combined OWCP File No. xxxxxx817 and OWCP File No. 

xxxxxx890, designating the latter as the master file.
3

OWCP subsequently referred appellant, along with a statement of accepted factors (SOAF)

and series of questions, to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for a second 

opinion examination regarding whether appellant sustained additional right upper extremity 

conditions causally related to the accepted March 9, 2018 employment injury. 

In a June 7, 2019 report, Dr. Askin reviewed appellant’s history of injury and discussed 

her medical records. On physical examination, he observed tenderness to touch at the right medial 

epicondyle and positive Phalen’s, Tinel’s, and Roos tests on the right. Dr. Askin indicated that 

appellant’s examination was consistent with carpal tunnel on the right, but there was no objective 

evidence of neuropathy or medial epicondylitis. He opined that the March 9, 2018 employment 

incident would not be a point of causation for appellant’s “so-called cubital tunnel syndrome.”

By decision dated July 9, 2019, OWCP denied expansion of the acceptance of her claim to 

include right cubital tunnel syndrome and right ulnar neuritis. It found that the weight of the 

medical evidence rested with the June 7, 2019 report of Dr. Askin.

On July 16, 2019 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. The hearing was held on November 14, 2019.

Appellant submitted a September 3, 2019 EMG/NCV study, which revealed mildly 

prolonged median motor distal latencies, median sensory velocities, and evidence of bilateral mild 

carpal tunnel syndrome.

By decision dated January 23, 2020, OWCP’s hearing representative set aside the July 9, 

2019 decision and remanded the claim for OWCP to obtain a supplemental report from Dr. Askin. 

In a February 4, 2020 supplemental report, Dr. Askin explained that carpal tunnel 

syndrome and medial epicondylitis could be the result of repetitive overuse or single exertion from 

a sports activity. He indicated that he reviewed the additional medical records, and opined that the 

March 9, 2018 employment injury did not cause any nerve injury.

By decision dated February 18, 2020, OWCP denied expansion of the acceptance of 

appellant’s claim to include right cubital tunnel syndrome and right ulnar neuritis. 

On February 24, 2020 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated April 14, 2020, OWCP’s hearing representative set aside the 

February 18, 2020 decision, finding a conflict between the medical opinions of Dr. Conte, 

appellant’s treating physician, and Dr. Askin, OWCP’s referral physician, regarding whether 

appellant sustained additional right upper extremity conditions due to the accepted March 9, 2018 

employment injury. The hearing representative remanded the case for OWCP to refer appellant 

for an impartial medical examination.

In August 2020 OWCP referred appellant, along with an updated SOAF and a series of 

questions, to Dr. Thomas O’Dowd, a Board-certified orthopedic surgeon serving as an impartial 

medical examiner (IME), in order to resolve the conflict in medical opinion evidence regarding 

whether appellant’s right cubital tunnel syndrome and lesion of the right ulnar nerve were causally 

related to the accepted March 9, 2018 employment injury. In an August 25, 2020 report,
4

Dr. O’Dowd described that on March 9, 2018 appellant slipped on ice while at work and injured 

her right elbow, right hip, lower back, and right knee. He indicated that she complained of her 

right elbow still bothering her and numbness in the ulnar nerve distribution on the right side. Upon 

physical examination of appellant’s upper extremities, Dr. O’Dowd observed full range of motion 

of both elbows without any focal tenderness. Tinel’s sign was slightly positive over the right ulnar 

nerve and there was decreased sensation in the right ulnar nerve distribution. Dr. O’Dowd noted 

that appellant’s claim was accepted for cervical strain, lumbar strain, and contusion of the right 

elbow. He further reported: “[a]s a result of the contusion to the right elbow, she developed 

neuropractic injury to the ulnar nerve as a result of the direct blow to the right elbow.” Dr. O’Dowd

indicated that appellant’s accepted conditions had resolved. He noted that the EMG/NCV

abnormalities noted in the July 2018 report had resolved by the September 2019 EMG/NCV study.

Dr. O’Dowd noted his agreement with both Dr. Askin and Dr. Conte. He reported that the 

opinion of both physicians was “largely correct” and he believed that it was a “matter of 

definition.” Dr. O’Dowd agreed with Dr. Askin that appellant did not have cubital tunnel 

syndrome, but noted that it could develop. He also indicated that he agreed with Dr. Conte that 

she had abnormalities to the ulnar nerve. Dr. O’Dowd opined that appellant did not develop “fullblown cubital tunnel syndrome which is a scarring or compression of the nerve as it passes through 

the cubital tunnel as described ... by Dr. Askin.” He concluded that she had a contusion and 

neuropractic injury to the right ulnar nerve at the elbow which has since resolved.

By decision dated July 28, 2021, OWCP expanded the acceptance of appellant’s claim to 

include contusion of the right ulnar nerve at the elbow.

By separate decision dated July 28, 2021, OWCP denied expansion of the acceptance of 

appellant’s claim to include the additional conditions of right cubital tunnel syndrome and right 

ulnar neuropathy causally related to the accepted March 9, 2018 employment injury.

On August 4, 2021 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. The hearing was held on December 7, 2021.

By decision dated February 8, 2022, OWCP’s hearing representative affirmed the July 28, 

2021 decision.

Appellant subsequently submitted a January 7, 2022 report by Dr. Laura E. Ross, an 

osteopath and Board-certified orthopedic surgeon, who indicated that appellant was evaluated for 

complaints of right elbow and arm pain following a March 9, 2018 employment incident. On 

physical examination of the right elbow, Dr. Ross observed tenderness to palpation along the 

medial upper condyle, but no gross instability. She diagnosed medial epicondylitis of the right 

elbow with possible tearing of the flexor tendon attachment onto the medial epicondyle. 

OWCP also received a February 5, 2022 right elbow magnetic resonance imaging (MRI)

scan, which revealed mild osteoarthrosis of the right elbow, marked enlargement of the ulnar nerve 

at the level of the cubital tunnel, mild common extensor origin tendinosis with low-grade partialthickness undersurface tear, mild common flexor/pronator origin tendinosis without tear, mild 

insertional biceps tendinosis without tear, and mild degeneration of the proximal radial collateral 

ligament without tear.
5

In a report dated March 22, 2022, Dr. William Wolfe, a Board-certified neurologist,

described the March 9, 2018 employment injury and noted appellant’s complaints of right medial 

elbow pain going down the medial forearm and numbness in the dorsal and palmar portion of the 

right palm. On physical examination of the right upper extremity, he observed positive Tinel’s in 

the right ulnar groove and cubital tunnel. Dr. Wolfe reported that appellant had direct trauma to 

the right medial elbow (ulnar groove/cubital tunnel) with numbness and weakness in the ulnar 

distribution. He opined that appellant’s injuries were directly attributable to the accident, which 

occurred on March 9, 2018. 

On April 7, 2022 appellant underwent an EMG/NCV study, which showed right ulnar 

neuropathy at the elbow. In an April 7, 2022 report, Dr. Matthew McClure, a Board-certified 

physiatrist and rehabilitation specialist, discussed the findings from the recent EMG/NCV study 

and indicated that it reflected the presence of a right ulnar nerve entrapment at the level of the 

cubital tunnel.

In reports dated April 28 and July 5, 2022, Dr. Ross noted appellant’s complaints of 

continued right wrist pain and swelling following a March 9, 2018 employment injury. She 

provided examination findings and diagnosed medial epicondylitis of the right elbow with partial 

tearing of the extensor tendon attachment onto the lateral epicondyle, exacerbation of mild 

arthrosis of the right elbow, insertional tendinitis of the right biceps, right cubital tunnel syndrome, 

and degenerative changes of the proximal radial collateral ligament of the right elbow. Dr. Ross 

recommended that appellant perform full-duty work. 

On July 11, 2022 appellant, through counsel, requested reconsideration.

In an August 23, 2022 report, Dr. Ross indicated that appellant returned to the office for 

further evaluation of her right elbow and arm. She conducted an examination and diagnosed 

medial epicondylitis of the right elbow with partial tearing of the extensor tendon attachment onto 

the lateral epicondyle, exacerbation of mild arthrosis of the right elbow, insertional tendinitis of 

the right biceps, cubital tunnel syndrome, and degenerative changes of the proximal radial 

collateral ligament of the right elbow.

By decision dated September 21, 2022, OWCP denied modification of the February 8, 

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.5

The medical evidence required to establish causal relationship between a specific 

condition, as well as any attendant disability claimed, and the employment injury, is rationalized 

5 R.J., Docket No. 17-1365 (issued May 8, 2019); 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).
6

medical opinion evidence.6 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.7 Additionally, the opinion of the physician must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and the 

specific employment factor(s) identified by the claimant.8

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. 9 

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. 10 When a case is 

referred to an 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.11

ANALYSIS

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

In an August 25, 2020 report, Dr. O’Dowd described the March 9, 2018 employment injury

and noted examination findings of slightly positive Tinel’s sign over the right ulnar nerve and 

decreased sensation in the ulnar nerve distribution. He indicated that appellant’s claim was 

accepted for cervical strain, lumbar strain, and contusion of the right elbow and reported that she

developed “neuropractic injury to the ulnar nerve as a result of the direct blow to the right elbow.”

Dr. O’Dowd further reported that the opinions of both Dr. Askin and Dr. Conte were “largely 

correct.” He opined that appellant did not develop “full-blown cubital tunnel syndrome,” but 

sustained a contusion and neuropractic injury to the right ulnar nerve at the elbow, which had 

resolved. 

The Board finds, however, that the report of Dr. O’Dowd, serving as the IME, lacked 

sufficient medical rationale to carry the special weight of the medical evidence. 12 Dr. O’Dowd

6 T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); JohnD. Jackson, 55 ECAB 

465 (2004).

7 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 

345 (1989).

9

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).

10 20 C.F.R. § 10.321.

11 K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020); 

Darlene R. Kennedy, 57 ECAB 414 (2006); GloriaJ. Godfrey, 52 ECAB 486 (2001); James P. Roberts, 31 ECAB 

1010 (1980).

12 See A.P., Docket No. 22-1092 (issued November 8, 2022); V.K., Docket No. 19-0422 (issued June 10, 2020).
7

indicated that both Dr. Askin and Dr. Conte were correct and indicated that appellant did not have 

“full-blown cubital tunnel syndrome.” The Board finds that Dr. O’Dowd’s opinion is equivocal 

and speculative as he did not definitely opine on whether the accepted March 9, 2018 employment 

injury caused additional right upper extremity conditions. 13 The Board has held that medical 

opinions which are equivocal or speculative are of diminished probative value.14 Accordingly, the 

Board finds that Dr. O’Dowd’s opinion lacks the specificity and detail needed to carry the special 

weight of the medical evidence.

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter.15 While the claimant has the responsibility to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence. It has the 

obligation to see that justice is done.16 Once OWCP undertakes development of the record, it must 

procure medical evidence that will resolve the relevant issues in the case. 17 In a situation where 

OWCP secures an opinion from an IME for the purpose of resolving a conflict in the medical 

evidence and the opinion from such examiner requires clarification and/or elaboration, OWCP has 

the responsibility to secure a supplemental report from the examiner for the purpose of correcting 

the defect in the original opinion.18 For the above-described reasons, the opinion of Dr. O’Dowd 

requires clarification. Therefore, in order to address the unresolved conflict in the medical opinion 

evidence, the Board will remand this case to OWCP for a supplemental opinion regarding whether 

appellant sustained additional right upper extremity conditions, causally related to the accepted 

March 9, 2018 employment injury. On remand, OWCP should also refer the new medical reports 

dated January 7 through August 23, 2022 to Dr. O’Dowd for review. If Dr. O’Dowd is unable to 

clarify his opinion or if his requested supplemental report is insufficiently rationalized, OWCP 

must submit the case record and a detailed SOAF to a new IME for the purpose of obtaining a 

rationalized medical opinion on the issue.19 Following this and any other such further development 

as may be deemed necessary, OWCP shall issue a de novo decision.

13 R.T., Docket No. 20-0081 (issued June 24, 2020); C.T., Docket No. 19-0508 (issued September 5, 2019); F.D., 

Docket No. 18-1596 (issued June 18, 2019).

14 T.M., Docket No. 19-1414 (issued February 12, 2020);S.R.,Docket No. 16-0657 (issued July 13, 2016); Minnie 

Cook, Docket No. 99-1848 (issued December 20, 2000).

15 See D.T., Docket No. 20-0234 (issued January 8, 2021); N.L., Docket No. 19-1592 (issued March 12, 2020); 

M.T., Docket No. 19-0373 (issued August22, 2019); B.A., Docket No. 17-1360 (issued January 10, 2018); ClintonE. 

Anthony, Jr., 49 ECAB 476 (1998).

16 C.L., Docket No. 20-1631 (issued December 8, 2021); L.B., Docket No. 19-0432 (issued July 23, 2019); 

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

17 T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

18 M.W., Docket No. 21-1260 (issued September 9, 2022); S.R., Docket No. 17-1118 (issued April5, 2018); Nancy 

Lackner (Jack D. Lackner), 40 ECAB 232 (1988); James P. Roberts, supra note 11.

19 T.C., Docket No. 20-1170 (issued January 29, 2021); M.D., Docket No. 19-0510 (issued August 6, 2019); Harold 

Travis, 30 ECAB 1071 (1979).
8

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the September 21, 2022 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: September 28, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board