United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE ARMY, MCALESTER
ARMY AMMUNITION PLANT, McAlester, OK,
Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-681
Issued: July 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 25, 2013 appellant,through his attorney, filed a timely appeal from an
August 1, 2012merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective July 29, 2012 on the grounds that he no longer had any residuals
or disability causally related to his accepted back injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 15, 2011 appellant, then a 41-year-old explosives operator, filed a traumatic
injury claim alleging that on June 9, 2011 he experienced pain in his legs and upper back and
numbness in his arms and fingers as a result of lifting trays and boxes on a pellet crew. He
stopped work and returned on June 13, 2011. OWCP accepted appellant’s claim for back sprain,
thoracic and lumbar region. Appellant stopped work again on August 1, 2011 and received
disability compensation.
On January 17, 2012 OWCP referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Dennis Foster, a Board-certified orthopedic surgeon, for a
second-opinion examination to determine the extent of his continuing employment-related
residuals and disability. In a February 6, 2012 report, Dr. Foster reviewed an accurate history of
injury,medical treatment and light-duty restrictions. He related appellant’s complaints of mid
and low back pain and numbness and tingling affecting both hands. Dr. Foster stated that
appellant had problems with his back in the past when he was thrown from a horse and suffered a
low back fracture in 2005. He underwent numerous surgeries and was on and off work until the
June 9, 2011 employment injury.
Upon examination, Dr. Foster observed no pain of the head and neck region upon deep
palpation or about the posterior aspect of the cervical spine. Range of motion of the cervical
spine was extension to 50 degrees, forward flexion to 35 degrees and rotation to either side to 80
degrees. Examination of the mid and low back revealed complaints of pain, but no spasm, upon
deep palpation through the mid-back between the shoulder blades. Dr. Foster reported that
flexibility of the thoracolumbar spine demonstrated fairly rigid bend forward to about 50 degrees
and extension was slightly beyond neutral. Straight leg raise testing was negative bilaterally.
Deep tendon reflexes were one plus and symmetric at both knees and two plus and symmetric at
both ankles. Dr. Foster reviewed the September 20, 2011 magnetic resonance imaging
(MRI)scansof the cervical and lumbar spine and noted mild-to-moderate disc protrusion at C4-5
and C5-6 and mild degenerative change at those two levels. The MRI scan of the lumbar spine
showed evidence of a previous L5-S1 fusion. A November 11, 2011 MRI scan of the cervical
spine revealed multiple small disc bulges, most notably at T5-6, T6-7, T7-8, T9-10 and T11-12.
Dr. Foster stated that appellant had ongoing complaints of his neck, thoracic and lumbar
spine but he found nothing dramatic in the neck or back, from an objective standpoint, that
would be disabling or necessarily related to the June 9, 2011 employment injury. He opined that
appellant exaggerated his symptomatology and that his disabling condition was subjective in
nature. Based on appellant’s ongoing complaints, he would not be capable of returning to any
type of work but stated that it was difficult to know if his complaints were real or purely
subjective. Dr. Foster reported that it was unlikely that any treatment would improvethe
complaints. In a work capacity evaluation form,henoted that appellant was not capable of
performing his usual job or working for eight hours with restrictions.
In a January 17, 2012 report, Dr. Stewart C. Smith, a Board-certified neurological
surgeon,noted appellant’s complaints of pain in his neck, lower back, mid-back and some left
and right leg pain. He related that last June 2011appellant worked at the employing
establishment and felt pain across his shoulder and upper thoracic area when he lifted some very

2

heavy pallets. Dr. Smith reviewed appellant’s history and reported a previous history of an
L5-S1 fusion with instrumentation removal in 2009. Examination revealed back pain and calf
muscle cramps. No leg pain or localized joint pain was noted. Dr. Smith noted that a cervical
MRI scan revealed a collapsing of the disc at C4-5 and C5-6 and some unconvertebral joint
spurring causing some bilaterally foraminal stenosis. X-ray of the thoracic spine demonstrated
two small disc herniations but no cord compression. Dr. Smith stated that the lumbar showed a
previous fusion across the L5-S1 level. He diagnosed lumbago, herniated discs and cervical
spondylosis.
In a January 17, 2012 work capacity evaluation form, Dr. John W. Ellis, Board-certified
in family medicine, stated that appellant’s accepted conditions were deranged discs, sprain of
thoracic and lumbar spine, deranged discs in the back, L5-S1 nerve root impairment and reflex
spasm into cervical. He indicated that appellant was not capable of performing his usual job and
was totally disabled for an indefinite period. Dr. Ellis recommended furthering testing and
evaluation.
In a January 24, 2012 report, Dr. Gregory A. Rogers, an occupational medicine specialist,
stated that he examined appellant on June 13, 2011 for complaints of back pain. He noted that
appellant had previous back problems leading to a spinal fusion in the lumbar area and related
that appellant attributed the cause of his inability to perform any duties to a new disc problem he
had in his thoracic spine. Upon examination, Dr. Rogers observed no significant point
tenderness consistent to any dermatome. He noted that appellant did not demonstrate the
appropriate pattern of pain with movement because his symptoms and reports kept changing
during the examination. While he was certain appellant had spinal problems, Dr. Rogers was
uncertain as to any findings suggestive of a disease process so severe he could not have
performed some form of light duty. He explained that he was puzzled by the case and noted that
although appellant was reportedly so incapacitated by a severe spinal problem that he could not
perform the lightest of duties, there was no objective evidence of this condition.
In a February 13, 2012 report, Dr. Ellis stated that appellant continued to have significant
decreased range of motion of the cervical and lumbar areas and numbness and tingling down
both legs and into his feet. He noted that the effects of the work injury had not ceased and that
appellant’s condition had worsened. Dr. Ellis reported that appellant was not able to return to
any type of employment and recommended continued medical treatment. He included a
workcapacity evaluation form indicating that appellant was totally disabled for an indefinite
period of time.
On February 13, 2012 appellant underwent cervical discogram surgery.
In a February 16, 2012 report, Dr. Howard R. Jarrell, Board-certified in neurology and
psychiatry,noted appellant’s complaints of mid and lower back pain and numbness and tingling
in both hands and arms. He reported appellant’s history for lower back trauma resulting in
L5-S1 interbody fusion and subsequent removal of instrumentation. Dr. Jarrell noted that a 2011
MRI scan of the thoracic spine revealed small disc protrusions at multiple levels, most notably
T5-6 and T6-7. A lumbar MRI scan demonstrated interbody and posterior mechanical fusion at
L5-S1. Dr. Jarrell related that appellant had three lumbar operations including L5-S1 interbody
fusion and reattachment of traumatic amputation. He diagnosed chronic thoracic syndrome,

3

chronic lumbar radicular syndrome, left greater than right, thoracic disc protrusions and history
of L5-S1 interbody fusion.
In a March 6, 2012 report, Dr. Smith noted that appellant had undergone a cervical
discogram since his last visit. He continued to complain of axial neck and arm pain. An MRI
scanof appellant’s lumbar spine revealed what appeared to be recurrent disc osteophyte complex
or possible scar tissue. Upon examination, Dr. Smith observed discomfort with range of motion
of appellant’s neck and a little bit of muscular tenderness to palpation along the upper shoulder
girdle and trapezium area. Examination of the lower extremities revealed dysesthesia down in a
perfect L5 distribution, lateral shin, top of his foot, big toe with some irritability with straight leg
raising. Dr. Smith requested that appellant’s accepted diagnoses be upgraded to cervical
radiculopathy, lumbar radiculopathy and cervical degenerative disc disease.
In a March 13, 2012 report, Dr. Ellis disagreed with Dr. Foster’s second-opinion report
and stated that appellant was recommended to undergo another cervical spine surgery. Even
though Dr. Foster stated that appellant was exaggerating his symptoms, he noted that appellant
could not return to any type of work at this time. Dr. Ellis reported that appellant continued to
have significant decreased range of motion of the cervical and lumbar areas and muscle spasms
and tightness during the examination. He explained that any type of extended standing, walking
or even sitting would increase the symptoms. Dr. Ellis opined that appellant would remain
temporarily totally disabled until further treatment.
OWCP determined that a conflict in medical opinion arose between Dr. Fosterand
Dr. Ellis whether as to appellant had any continuing residuals or disability due to his accepted
employment injuries. On April 2, 2012 it referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Sami Framjee, a Board-certified orthopedic
surgeon, for an impartial medical examination.
In a May 2, 2012 report, Dr. Framjee provided an accurate history of injury and related
appellant’s complaints of neck and back pain, tingling in his fingers, headaches and tightness in
his shoulders. He reviewed the medical history and noted that appellant fractured his lumbar
spine when he was thrown off a horse. Appellant underwent lumbar fusion surgery twice and
had the screws removed in 2007. Dr. Framjee noted that a September 20, 2011 MRI scan of
appellant’s cervical spine revealed moderate left neural foraminal stenosis at C5-6, mild
posterior bulge, mild bilateral neural foraminal narrowing at C4-6 and mild-to-moderate bilateral
facet arthrosis. A September 20, 2011 MRI scan of the lumbar spine revealed postoperative
changes from interbody and prior posterior mechanical fusion, mild left neural foraminal
narrowing and moderate bilateral neural foraminal stenosis at L4-5 from facet hypertrophy and
diffuse bulge.
Upon examination, Dr. Framjee observed no point tenderness on palpation of the
paracervical muscle mass or supraspinatus mass, no trigger points or reflex muscle spasms and
no neurological deficits in the right or left upper extremity. Motor power was 4+ bilaterally.
Dr. Framjee noted that appellant resented undergoing range-of-motion testing of the cervical
spine. Examination of the thoracolumbar spine revealed no acute tenderness on palpation and
some discomfort on palpation. Range of motion of the thoracolumbar spine was forward flexion
to 40 degrees, extension to 20 degrees, right and left flexion to 30 degrees and right and left

4

rotation to 20 degrees. Straight leg raise testing was negative bilaterally. Dr. Framjee reported
that sensory x-rays of the cervical spine demonstrated diffuse cervical spondylosis, primarily at
C4-5, C5-6 and C6-7 but no fractures. X-rays of the thoracic spine revealed no fractures and
minimal degenerative changes. X-rays of the lumbar spine showed residuals of a laminectomy
defect at the L5-S1 level, interbody fusion and L5-S1 postlateral transverse process fusion.
Dr. Framjee opined that appellant did not have any medically identifiable injury to the cervical,
lumbar or thoracic spine related to the June 9, 2011 work incident. He reported that appellant
could return to modified duty as a machine operator with restrictions of no lifting more than
25 pounds.2 In a work capacity evaluation form, Dr. Framjee found that appellant was able to
work eight hours a day with restrictions of no lifting over 25 pounds.
In a May 10, 2012 report, Dr. Jarrell related appellant’s complaints of mid and lower
back pain radiating into the rumps and posterior thigh. He noted a history or lower back trauma
resulting in L5-S1 interbody fusion and subsequent removal of instrumentation. Dr. Jarrell
diagnosed chronic thoracic syndrome and lumbar radicular syndrome.
In a May 23, 2012 report, Dr. Smith disagreed with Dr. Foster’s evaluation of appellant.
He stated that appellant was a candidate to undergo cervical fusion at the C4-5 and C5-6 levels
that could provide a significant relief of his neck pain.
On May 24, 2012 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits based on Dr. Framjee’s May 2, 2012 referee medical
report. Appellant was advised that he had 30 days to submit additional relevant evidence or
argument if he disagreed with the proposed action.
In May 24 and July 19, 2012 work capacity evaluation forms, Dr. Ellis noted diagnoses
of deranged discs, lumbar and thoracic sprain and L5-S1 spinal nerve post management. He
checked a box marked “no” that appellant was not able to perform his usual job or work eight
hours a day with restrictions.
In a May 29, 2012 letter, appellant’s counsel related that appellant was injured on June 9
and 16, 2011 and diagnosed with muscle tendon unit strain of the thoracic and lumbar spine,
deranged discs in the back, bilateral L5 and S1 spinal nerve root impairment and bilateral
lumbosacral and sciatic nerve impairment. He contended that three physicians, Drs. Smith,
Foster, and Ellis, believed that appellant was not able to return to work and there was no need to
send him for a referee opinion.
In a June 14, 2012 work capacity evaluation, Dr. Smith noted that appellant was
temporarily totally disabled.
In a decision dated August 1, 2012, OWCP terminated appellant’s compensation benefits
effective July 29, 2012. It found that Dr. Framjee’s May 2, 2012 referee report represented the
weight of the medical evidence and established that his accepted conditions had ceased and that
he no longer had any residuals or disability causally related to his accepted employment injuries.
2

Dr. Framjee also noted that appellant was not able to return to heavy manual labor as a result of his previous low
back surgeries and not the June 9, 2011 work-related injury.

5

LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.3 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.4 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.7
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.8 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.9 When there exists opposing medical reports of virtually equal weight and rationale and
the case is 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.10
ANALYSIS
OWCP accepted that on June 9, 2011 appellant sustained lumbar and thoracic sprains in
the performance of duty, while lifting trays and boxes. He was on and off work but had not
returned since August 1, 2011. Appellant received disability compensation. The record also
reveals that in 2005 hesustained a low back fracture when he was thrown from a horse and
underwent numerous back surgeries. In a decision dated August 1, 2012, OWCP terminated
appellant’s compensation benefits based on the report of the impartial medical examiner,
Dr. Framjee. The Board finds that OWCP properly terminated his compensation benefits
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB
541 (1986).
5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
7

A.P., id.;James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

8

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).
9

20 C.F.R. § 10.321.

10

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

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effective July 29, 2012 on the grounds that he no longer had any residuals or disability causally
related to his accepted employment-related conditions.
OWCP found that a conflict in medical opinion arose between appellant’s treating
physicians, including Drs. Ellis and Jarrell, he and Dr. Foster, an OWCP referral physician. It
referred appellant to Dr. Framjee to resolve the conflict. In a May 2, 2012 report, Dr. Framjee
provided an accurate history of the June 9, 2011 employment injury and reviewed appellant’s
medical records. He noted that appellant sustained a previous back injury when he was thrown
from a horse and underwent numerous back surgeries. Dr. Framjee noted that an MRI scan of
the lumbar spine revealed postoperative changes from interbody and prior posterior mechanical
fusion, mild foraminal narrowing and moderate bilateral neural foraminal stenosis at L4-5 from
facet hypertrophy and diffuse bulge. Upon examination, he observed no point tenderness on
palpation of the paracervical muscle mass or supraspinatus mass, no trigger points or reflex
muscle spasms and no neurological deficits in the right or left upper extremity. Examination of
the thoracolumbar spine revealed no acute tenderness on palpation and some discomfort on
palpation. Straight leg raise testing was negative bilaterally. Dr. Framjee opined that there was
no objective evidence that appellant continued to suffer from an injury to the cervical, lumbar or
thoracic spine as a result of the June 9, 2011 employment injury. He concluded that appellant
could return to modified duty with restrictions of no lifting over 25 pounds.
The Board finds that Dr. Framjee’s May 2, 2012 referee medical report is sufficiently
detailed and well reasoned to constitute the weight of the medical opinion evidence. Where there
exists opposing medical reports of virtually equal weight and rationale and the case is 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.11Dr. Framjee reviewed appellant’s history and accurately described the
June 9, 2011 employment injury. He conducted an examination and found that the objective
evidence did not establish that appellant continued to suffer residuals or disability from his workrelated injury. Dr. Framjee explained that appellant did not have any medically identifiable
injury to the cervical, lumbar or thoracic spine related to the June 9, 2011 work incident. He did,
however, identify postoperative changes related to the surgical procedures appellant underwent
for his previous injury, when he was thrown from a horse. The Board finds that Dr. Framjee’s
opinion represents the special weight of medical opinion evidence and is sufficient to justify
OWCP’s termination of wage-loss and compensation benefits for the accepted conditions.
The Board finds that the medical evidence submitted after Dr. Framjee’s independent
medical evaluation report was insufficient to overcome the weight of this report or to create
another conflict in medical evidence. Appellant submitted various reports by Drs. Jarrell and
Ellis noting diagnosis of deranged discs, lumbar and thoracic sprain and L5-S1 spinal nerve post
management. Because these physicians were on one side of the conflict which Dr. Framjee
resolved the additional reports are insufficient to overcome the weight accorded Dr. Framjee’s
report as the impartial medical examiner or to create a new conflict.12

11

Supra note 10.

12

Dorothy Sidwell, 41 ECAB 857 (1990).

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Appellant also submitted reports by Dr. Smith, who noted that appellant was totally
disabled and reported that he was a candidate for cervical fusion at the C4-5 and C5-6 levels.
The Board finds, however, that Dr. Smith’s report is of limited probative value as he offers no
opinion on the cause of appellant’s disability or cervical condition nor does he relate his back
condition to the June 9, 2011 work-related injury.13 Thus, his opinion is insufficient to overcome
the special weight accorded to Dr. Framjee’s impartial medical examination report. The Board
finds that Dr. Framjee’s opinion continues to constitute the special weight of medical opinion
and supports OWCP’s decision to terminate appellant’s wage-loss and compensation benefits.
There is no other medical evidence contemporaneous with the termination of appellant’s
benefits, which supports that he has any continuing residuals or disability related to his accepted
work-related injuries.
On appeal, appellant’s counsel alleges that OWCP failed to consider the legal arguments
and medical evidence in its termination decision.14 The Board notes, however, that in its
August 1, 2012 decision OWCP provided an accurate history of injury and discussed the
pertinent evidence of the record. It properly determined that Dr. Framjee’s impartial medical
report constituted the special weight of medical evidence. Thus, the Board finds that OWCP
properly terminated appellant’s wage-loss and compensation benefits.
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 OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective July 29, 2012.

13

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

14

Appellant’s counsel also alleged that OWCP should upgrade appellant’s condition per his September 7, 2012
request. Because OWCP has not issued a decision regarding the expansion of appellant’s claim, the Board does not
have jurisdiction over this issue at this time.

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ORDER
IT IS HEREBY ORDERED THATthe August 1, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.R., Appellant
and
U.S. POSTAL SERVICE, NEW YORK PRIOR
MAIL PROCESSING CENTER, Bethpage, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2045
Issued: April 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 6, 2013 appellant, through her attorney, filed a timely appeal of a May 1
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration. As more than 180 days elapsed from issuance of the most recent
merit decision to the filing of this appeal, and pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has no jurisdiction over the merits
of the case.2

1
2

5 U.S.C. §§ 8101-8193.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant has up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2) (2007). For final adverse decisions issued on or after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e) (2009); R.C., Docket No. 10-2371
(issued July 14, 2011).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
On appeal appellant’s attorney asserts that OWCP erred in denying merit review because
he submitted relevant medical evidence.
FACTUAL HISTORY
This case has previously been before the Board. In a February 24, 2010 decision, the
Board found that OWCP met its burden of proof to terminate appellant’s compensation benefits,
effective June 8, 2008, based on the opinion of Dr. Robert Israel, a Board-certified orthopedic
surgeon and OWCP referral physician. The Board also found that she failed to meet her burden
of proof to establish that she had any disability after June 8, 2008 causally related to her June 13,
2001 work injury accepted for a low back strain.3 In a February 13, 2012 decision, the Board
found that appellant submitted insufficient medical evidence with her February 11, 2011
reconsideration request to establish that she continued to be disabled after June 8, 2008 due to
the June 13, 2001 employment injury. The Board noted that it did not have jurisdiction over
appellant’s assertion that the accepted conditions be expanded because the record did not contain
a final OWCP decision.4 On August 13, 2012 the Board denied her petition for reconsideration.
The facts of the previous Board decisions are incorporated herein by reference.
On February 4, 2013 appellant’s attorney requested reconsideration. He referenced
medical evidence previously submitted to the record. Counsel asserted that appellant’s benefits
had been improperly terminated and that she continued to be disabled due to the June 13, 2001
work injury. He submitted a May 10, 2011 operative report in which Dr. David J. Langer, a
Board-certified neurosurgeon, related that appellant had a long history of low back pain since a
June 2001 employment injury. Dr. Langer diagnosed L5-S1 instability and an L5-S1 disc
herniation. He performed a lumbar fusion at L5-S1.
In a nonmerit decision dated May 1, 2013, OWCP denied appellant’s reconsideration
request. It found her arguments were similar to those previously presented that were found
without merit by the Board and that the medical evidence submitted was not relevant to the issue
of causal relationship.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.5 Section 10.608(a) of Title 20 of the Code of Federal Regulations
3

Docket No. 09-1229 (issued February 24, 2010).

4

Docket No. 11-1700 (issued February 13, 2012).

5

5 U.S.C. § 8128(a).

2

(C.F.R.) provide that a timely request for reconsideration may be granted if OWCP determines
that the employee has presented evidence and/or argument that meets at least one of the
standards described in section 10.606(b)(2).6 This section provides that the application for
reconsideration must be submitted in writing and set forth arguments and contain evidence that
either: (i) shows that OWCP erroneously applied or interpreted a specific point of law; or
(ii) advances a relevant legal argument not previously considered by OWCP; or (iii) constitutes
relevant and pertinent new evidence not previously considered by OWCP.7 Section 10.608(b)
provides that when a request for reconsideration is timely but fails to meet at least one of these
three requirements, OWCP will deny the application for reconsideration without reopening the
case for a review on the merits.8
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated May 1, 2013 denying appellant’s application for review. Because there is no OWCP merit
decision within the Board’s jurisdiction, the Board lacks jurisdiction to review the merits of
appellant’s claim.9
The Board finds that appellant’s assertion that OWCP erroneously applied or interpreted
the law to be without merit. With her February 2, 2013 reconsideration request, appellant’s
attorney reiterated arguments that the termination of appellant’s benefits was in error and that she
continued to be disabled due to the June 13, 2001 employment injury, accepted for low back
strain. These arguments had been thoroughly reviewed by the Board in previous decisions dated
February 24, 2010 and February 13, 2012.10 Counsel also referenced medical evidence
previously reviewed by OWCP and the Board.11 Evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for
reopening a case.12 Consequently, appellant was not entitled to a review of the merits of the
claim based on the first and second above-noted requirements under section 10.606(b)(2).13
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted a May 10, 2011 operative report from Dr. Langer that had not been previously
6

20 C.F.R. § 10.608(a).

7

Id. at § 10.608(b)(1) and (2).

8

Id. at § 10.608(b).

9

Supra note 1.

10

Supra notes 3 and 4.

11

Id. The Board notes that no medical evidence was submitted between February 5, 2011 and February 4, 2013.
The last report received prior to the February 4, 2013 reconsideration request was a January 31, 2011 report from
Dr. Rafael Antonio Rodriguez, an anesthesiologist practicing pain management, reviewed by the Board in its
February 13, 2012 decision.
12

J.P., 58 ECAB 289 (2007).

13

20 C.F.R. § 10.606(b)(2).

3

considered by OWCP or the Board. Dr. Langer, however, merely noted a history that appellant
had low back pain since she was injured at work in June 2001 and diagnosed L5-S1 instability
and L5-S1 disc herniation. He did not specifically address whether the diagnosed conditions or
any disability were caused by the employment injury. The surgical report is of no probative
value on the issue of whether appellant has continuing disability due to the accepted low back
strain. Appellant, therefore, did not submit relevant and pertinent new evidence not previously
considered by OWCP.
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by OWCP, it properly denied her reconsideration request.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 21, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
DULLES INTERNATIONAL AIRPORT,
Sterling, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1176
Issued: April 29, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On April 20, 2020 appellant filed a timely appeal from a March 6, 2020 merit decision of
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned the appeal Docket No. 20-1176.1
On November 7, 2019 appellant, then a 49-year-old canine (K-9) supervisor, filed an
occupational disease claim (Form CA-2) alleging that he developed left hand numbness, tingling,
and pain due to factors of his federal employment, including daily use of a computer and working
and training K-9s.2 He indicated that he had an accepted left shoulder injury under OWCP File

1
The Board notes that, following the March 6, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

OWCP assigned the present claim File No. xxxxxx848.

No. xxxxxx609.3 Appellant noted that he first became aware of his hand condition and its relation
to his federal employment on October 5, 2017. He stopped work on July 12, 2019.
In a January 22, 2020 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence and provided a questionnaire for
his completion. OWCP afforded appellant 30 days to respond.
By decision dated March 6, 2020, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that the alleged work factors
occurred as described.
The Board, having duly considered the matter, finds that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.4 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.5 Herein, appellant’s claim
under OWCP File No. xxxxxx609 also involves an injury to his left shoulder. For a full and fair
adjudication, the case must be returned to OWCP to administratively combine the current case
record with OWCP File No. xxxxxx609. This will allow OWCP to consider all relevant claim
files and accompanying evidence in developing appellant’s current occupational disease claim.
Following this and other such further development as deemed necessary, OWCP shall issue a
de novo decision.

3

OWCP File No. xxxxxx609 was accepted for derangement of the left acromioclavicular (AC) joint.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

2

IT IS HEREBY ORDERED THAT the March 6, 2020 decision of Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: April 29, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chino Valley, AZ, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-1510
Issued: March 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 6, 2011 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs (OWCP) dated December 14, 2010 concerning the denial of
his claim.1 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

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s decision
was issued on December 14, 2010, the 180-day computation begins on December 15, 2010. One hundred and eighty
days from December 15, 2010 was June 13, 2011. Since using June 14, 2011, the date the appeal was received by
the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of
filing. The date of the U.S. Postal Service postmark is June 6, 2011, which renders the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established that his left shoulder condition is causally
related to the September 5, 2009 employment incident, as alleged.
FACTUAL HISTORY
On September 28, 2009 appellant, then a 49-year-old clerk, filed an occupational disease
claim alleging that on September 5, 2009 he first realized his shoulder injury was due to pulling
tubs apart and throwing flats in the performance of duty.
On October 20, 2009 appellant filed a traumatic injury claim alleging that on
September 5, 2009 he injured his shoulder due to pulling tubs apart and throwing flats.
By letter dated October 15, 2009, OWCP informed appellant that the evidence was
insufficient to support his claim. He was advised as to the medical and factual evidence required
to support his claim and given 30 days to provide the requested evidence.
By decision dated December 3, 2009, OWCP denied the claim on the grounds that fact of
injury was not established.
On February 8, 2010 Peggy Towles, a certified family nurse practitioner, reported left
shoulder tenderness to subacromion palpation and limited range of left shoulder range of motion.
OWCP received a magnetic resonance imaging (MRI) scan of the left shoulder and
February 8, 2010 progress notes. The MRI scan revealed minor acromioclavicular joint
degenerative changes. There was no evidence of either a dislocation or fracture of the left
shoulder. In the February 8, 2010 progress notes, Ms. Towles provided physical findings and
noted an injury date of September 5, 2009. She diagnosed left shoulder pain/arthralagia.
On March 12 and 13, 2010 appellant requested reconsideration.
By decision dated May 19, 2010, OWCP found appellant’s claim was for a traumatic
injury and was not an occupational disease claim. It found that appellant had established the
factual portion of fact of injury, but failed to establish the medical aspect. Thus, OWCP denied
appellant’s traumatic injury claim on the grounds that he failed to establish fact of injury.
In a September 8, 2010 progress note, Dr. Scott Ekdahl, a treating osteopath, noted an
injury date of September 5, 2009 and provided physical findings.3 He diagnosed left shoulder
pain/arthralgia.
On September 23, 2010 appellant requested reconsideration and submitted medical
evidence in support of his request. A September 16, 2010 MRI scan revealed a left shoulder
glenoid labral cartilage tear, mild tendinopathy and mild bicipital tendon thickening and edema

3

The first 1½ pages are copies of the February 8, 2010 progress note from Ms. Towles.

2

at the superior humeral head consistent with tendinitis and possibly minimal intrasubstance
tearing. It also noted a history of a lifting injury occurring on September 5, 2009.
By decision dated December 14, 2010, OWCP modified the denial of appellant’s claim.
It found fact of injury established as the factual aspect was established, but denied the claim on
the grounds that there was no medical evidence establishing a causal relationship between the
diagnosed left shoulder pain/left shoulder pain/arthralgia and the September 5, 2009 employment
injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.5 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.7
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.8 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.9
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.10 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.11
4

Supra note 2.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
10

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

11

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.13 The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.14
ANALYSIS
Appellant alleged that he sustained a shoulder injury while pulling tubs apart and
throwing flats on September 5, 2009. There is no dispute that the evidence supports that the
incident occurred as alleged. The Board finds, however, that the medical evidence is insufficient
to establish that appellant’s left shoulder condition is causally related to the September 5, 2009
work incident. Appellant did not submit a rationalized medical report from a physician
explaining how the September 5, 2009 work incident caused or aggravated his left shoulder
condition.
In a September 8, 2010 progress note, Dr. Ekdahl diagnosed left shoulder pain/arthralgia.
He provided physical findings and noted an injury date of September 5, 2009. This evidence,
however, is insufficient to establish appellant’s claim. Dr. Ekdahl failed to address how the
diagnosed condition was caused or aggravated by the accepted September 5, 2009 employment
incident.15
The remainder of the medical evidence consisting of diagnostic testing and progress notes
is also insufficient to establish appellant’s claim as the evidence fails to address causal
relationship between appellant’s diagnosed condition and the September 5, 2009 work incident.
The Board also notes that appellant submitted medical records from a nurse practitioner. Section
8101(2) of FECA provides, however, that the term physician includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law.16 Therefore, the reports from Ms. Towles, a
certified family nurse practitioner, do not constitute competent medical evidence and are
insufficient to establish that appellant sustained a shoulder injury causally related to his work
incident on September 5, 2009.
12

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
13

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

14

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

15

A.F., 59 ECAB 714 (2008); A.D., supra note 12; Ellen L. Noble, 55 ECAB 530 (2004) (medical evidence
which does not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship).
16

5 U.S.C. § 8101(2).

4

OWCP advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant did not provide a medical opinion that
sufficiently described or explained how the September 5, 2009 employment incident caused an
injury. He has failed to submit any probative medical evidence establishing that he sustained an
injury in the performance of duty.
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 failed to meet his burden of proof to establish that he
sustained a left shoulder injury causally related to his September 5, 2009 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 14, 2010 is affirmed.
Issued: March 13, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1660
Issued: January 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 1, 2012 appellant, through her attorney, filed a timely appeal from a May 7,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has an employment-related permanent impairment to the
left arm entitling her to a schedule award under 5 U.S.C. § 8107.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was on a prior appeal with respect to a schedule award for the right arm.2 As
the Board noted in its October 22, 2012 decision, the Board set aside the December 7, 2011
OWCP decision affirming a schedule award for a two percent right arm impairment, finding that
the opinion of Dr. Michael Wujciak, a Board-certified orthopedic surgeon, was not sufficient to
resolve the conflict. The history of the case provided by the Board in the October 22, 2012
decision is incorporated herein by reference.
With respect to the left arm, the May 24, 2011 report from Dr. Wujciak stated, “I have
concluded the grade 1 modifiers as being 0 to 1 regarding test, 0 to 1 regarding history and 0
regarding physical findings. This would put the grade modifiers at 0 to 1, which would lead to a
left upper extremity impairment of 0 to 0.33, which when rounded out as per instructions equals
a 0 left upper extremity permanent impairment.”
The case was referred to an OWCP medical adviser for review. In a report dated June 9,
2011, the medical adviser stated that there was no ratable left arm impairment. According to the
medical adviser, “if you have a normal physical exam[ination], there is no impairment” and
Table 15-23 cannot be used.
By decision dated October 25, 2011, OWCP found that appellant was not entitled to a
schedule award for the left arm. In a decision dated May 7, 2012, an OWCP hearing
representative affirmed the October 25, 2011 decision. The hearing representative found that the
weight of the evidence was represented by Dr. Wujciak.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.3 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment
as the uniform standard applicable to all claimants.4 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition.5

2

Docket No. 12-1084 (issued October 22, 2012).

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

A. George Lampo, 45 ECAB 441 (1994).

5

FECA Bulletin No. 09-03 (issued March 15, 2009).

2

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.6 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.7
ANALYSIS
In the October 22, 2012 decision, the Board found that Dr. Wujciak did not properly
apply Table 15-23 with respect to right arm impairment. With respect to the left arm, the Board
also finds the opinion of Dr. Wujciak is of diminished probative value. Dr. Wujciak opined that
the grade modifiers for test results and history were “0 to 1.” As the Board noted in the prior
decision, Table 15-23 does not provide a range or sliding scale of “0 to 1” with respect to grade
modifiers. The physician must choose one of the grade modifiers from Table 15-23 for test
results, and history and physical findings, based on the examination and medical record.8 There
is no provision under Table 15-23 for the method used by Dr. Wujciak. The Board finds
Dr. Wujciak did not provide a rationalized medical opinion on the issue.
The case was referred to an OWCP medical adviser for an opinion as to permanent
impairment. As the Board noted in the prior decision, it is well established that the referee
physician, not the medical adviser, must resolve the issue presented.9 The Board also notes that
although the medical adviser stated that, if there is a normal physical examination, there is no
impairment, under Table 15-23 arm impairment can be established with normal physical
findings.10 Table 15-23 allows up to a three percent permanent impairment with normal physical
findings. The case will be remanded to OWCP for proper resolution of the conflict pursuant to
5 U.S.C. § 8123(a). After such further development as OWCP deems necessary, it should issue
an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and must be remanded to OWCP
for further development of the medical evidence.

6

A.M.A., Guides 448-50.

7

Id.

8

Grade modifiers for test findings, history and physical findings are determined and then averaged to determine
the final grade modifier. A physician can assign a grade modifier of 1 or 0 for normal physical findings. In either
case an impairment could be established after the grade modifiers for test findings and history are determined.
A.M.A., Guides 449, Table 15-23.
9

W.C., Docket No. 11-659 (issued March 22, 2012); Thomas J. Fragale, 55 ECAB 619 (2004).

10

A.M.A., Guides 449, Table 15-23.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 7, 2012 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: January 8, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF ENERGY, FORRESTAL
BUILDING, Washington, DC, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0952
Issued: October 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 7, 2018 appellant, through her representative, filed a timely appeal from a
November 9, 2017 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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective August 18, 2016 as she no longer had residuals due
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.

to her January 30, 2013 employment injury; and (2) whether she has established continuing
employment-related disability or residuals after August 18, 2016.
FACTUAL HISTORY
On February 20, 2013 appellant, then a 51-year-old budget analyst, filed a traumatic injury
claim (Form CA-1) alleging that on January 30, 2013 she injured her back and the right side of her
body when she slipped and fell while in the performance of duty. She stopped work on her date
of injury and did not return. OWCP accepted the claim for cervical neuritis, neck sprain, a bilateral
sprain of the shoulder and upper arm, a right wrist sprain, a left elbow sprain, thoracic sprain, a
pelvis sprain, a left knee sprain, and unspecified lumbar disc disorders. It paid appellant wageloss compensation beginning October 6, 2013.
Appellant’s position description indicated that her work required “frequent walking or
moving around.” Her job was sedentary and required using the computer.
A magnetic resonance imaging (MRI) scan study of the cervical spine, obtained on
March 7, 2013, revealed minimal spondylosis and disc bulging at C5-6 without a herniation or
stenosis and minimal decreased cervical lordosis. A March 11, 2013 lumbar MRI scan study
showed multilevel disc bulging and facet hypertrophy at L4-5 without a herniation or stenosis and
a small cyst at L4-5. A September 5, 2013 MRI scan study of the left knee revealed a partial tear
of the anterior cruciate ligament (ACL) of under 50 percent, moderate chondromalacia, and large
effusion.
Dr. Daniel R. Ignacio, a Board-certified physiatrist, treated appellant following her work
injury. In a progress report dated January 3, 2014, he diagnosed chronic cervical strain with
cervical neuritis, chronic brachial neuritis, chronic bilateral shoulder strain, chronic left
elbow/forearm strain, chronic thoracolumbar strain, chronic left knee strain, chronic lumbar disc
syndrome with radiculopathy, and chronic pain syndrome. Dr. Ignacio noted that appellant wanted
to return to work, but indicated that she would require work restrictions of no prolonged typing,
sitting, weight bearing, kneeling, or walking over one mile.
OWCP, on February 24, 2014, referred appellant to Dr. D. Burke Haskins, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated March 11, 2014,
Dr. Haskins reviewed her history of injury and current complaints of neck and right arm pain, right
upper extremity numbness, bilateral hand numbness, thoracic pain, and left knee pain. On
examination he found a positive Tinel’s sign at the wrists, a negative straight leg raise, and pain
on palpation of the left knee without laxity. Dr. Haskins diagnosed an ACL tear, degenerative
joint disease of the knee, neck sprain, lumbosacral sprain, and preexistent carpal tunnel syndrome.
He opined that appellant had no residuals of the pelvis, elbow, shoulder, or wrist sprains.
Dr. Haskins advised that her carpal tunnel syndrome and left knee degenerative joint disease were
not causally related to her work injury, but that the partial cruciate ligament tear, cervical strain,
and lumbar strain were “related by direct cause.” He opined that appellant could resume her usual
employment without restrictions and had reached maximum medical improvement (MMI).
Regarding residuals, Dr. Haskins noted that she had continued complaints, but no significant
objective findings to suggest a significant ongoing problem.

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On September 1, 2015 OWCP advised appellant of its proposed termination of her wageloss compensation and medical benefits. It asserted that Dr. Haskins had found that she had no
residuals from her work injury and could resume her usual employment.
Dr. Eric G. Dawson, an attending orthopedic surgeon, reviewed OWCP’s September 1,
2015 proposed termination of compensation benefits and advised that he disagreed with
Dr. Haskins’ findings. He related that appellant had objective findings of cervical and left brachial
plexus nerve impingement and a torn left ACL. Dr. Dawson questioned why Dr. Haskins did not
feel that these findings would be an impediment to her day-to-day function.
A left knee MRI scan study, obtained on September 8, 2015, demonstrated
tricompartmental osteoarthritis changes, chondromalacia patella, a small joint effusion, and a
synovial cyst.
In a September 9, 2015 report, Dr. Ignacio discussed appellant’s January 30, 2013 work
injury and the results of objective studies. He advised that she continued to experience neck and
shoulder pain with some radiation especially into her left arm and swelling and pain in her left
knee impacting her mobility. Dr. Ignacio provided examination findings and recommended
continued pain management. He disagreed with Dr. Haskins’ opinion that appellant had no further
disability or residuals due to the accepted work injury. Dr. Ignacio found that appellant was
currently unable to resume work.
OWCP determined that a conflict existed between Dr. Haskins and Dr. Ignacio regarding
whether appellant could return to work without restrictions and whether she had reached MMI. It
referred her to Dr. Michael Franchetti, a Board-certified orthopedic surgeon, for an impartial
medical examination.
In a report dated November 6, 2015, Dr. Franchetti noted that appellant performed
sedentary employment. He reviewed the history of injury and the medical reports of record,
including the results of objective testing. Dr. Franchetti noted that a September 8, 2015 MRI scan
study of the left knee revealed that appellant’s ACL injury had healed and that she had some
degenerative changes. On examination, he found no upper or lower extremity deficits consistent
with radiculopathy, tenderness at the cervical spine with some loss of flexion, but no spasm, a
positive Tinel’s sign of the right wrist, some tenderness of the thoracic and lumbar spine without
spasm, a bilateral negative straight leg, and no tenderness or instability of the left knee.
Dr. Franchetti opined that appellant had reached MMI and could resume work without restrictions,
noting that her job duties were sedentary. He related, “[She] voices continued subjective
complaints concerning her injuries of January 30, 2013, but there are no convincing significant
objective findings consistent with ongoing residuals due to the injuries of January 30, 2013.” In a
November 6, 2015 work capacity evaluation (OWCP-5c), Dr. Franchetti determined that appellant
could resume her usual work without restrictions and indicated by checkmark “yes” in a box that
she could perform sedentary and light work.
Dr. Ignacio and Dr. Dawson continued to submit progress reports. In a November 18, 2015
duty status report (Form CA-17), Dr. Ignacio indicated that appellant could resume full-time work
with restrictions.

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In a report dated March 25, 2016, Dr. Dawson opined that appellant’s injuries had not
resolved. He noted that the “main residual is related to the knee where she has ligamentous
insufficiency, as well as the lumbar spine with the lumbar nerve irritability and impingement.
Appellant also has some soft touch nerve irritability related to the brachial neuritis, which is
showing some tendency to improve, but still present.” Dr. Dawson found the conditions had not
resolved and that appellant could perform only limited-duty employment within the restrictions
set forth by Dr. Ignacio. He advised that she required continued medical treatment.
In an April 6, 2016 progress report, Dr. Ignacio provided detailed findings on examination
and noted that there were no limited-duty positions available for appellant. He opined that she was
unable to return to work and recommended retirement.
By decision dated August 18, 2016, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date. It found that the opinion of Dr. Franchetti
represented the special weight of the evidence and established that she had no further disability
from her work injury or need for further medical treatment.
On August 24, 2016 Dr. Dawson related that the Dr. Franchetti did not adequately address
appellant’s left knee effusion and advised that objective studies showed cervical radiculopathy and
impingement. He opined that she was able to return to work with some modifications to her chair
and computer.
Dr. Ignacio, in an August 31, 2016 progress report, indicated that appellant complained of
pain radiating into her legs, left knee weakness, and bilateral arm numbness. He found that she
was unable to work.
On April 10, 2017 Dr. Ignacio opined that appellant continued to experience problems with
her left knee, left elbow, shoulders, neck, and head due to her January 30, 2013 work injury. He
diagnosed chronic cervical strain and neuritis, chronic bilateral shoulder strain, probably right
rotator cuff syndrome, chronic brachial neuritis, chronic left elbow strain, chronic thoracolumbar
strain with lumbar neuritis, chronic lumbar disc syndrome with radiculopathy, chronic left knee
strain and internal derangement, and chronic pain syndrome. Dr. Ignacio found that appellant
could perform limited-duty employment.
In a report dated March 13, 2017, Dr. Nigel M. Azer, a Board-certified orthopedic surgeon,
evaluated appellant for right shoulder, neck, and left knee pain and numbness in the hands
bilaterally after a January 30, 2013 work injury. He noted that she was currently working. On
examination Dr. Azer found palpable muscle spasm of her trapezius and a positive Hawkins, Neer,
and supraspinatus test of the shoulder. He further found a positive Tinel’s sign and Phalen’s test,
a negative straight leg raise, and small effusion and some laxity of the left knee. Dr. Azer
diagnosed post-traumatic left knee arthritis with chronic ACL insufficiency, right shoulder
impingement syndrome with a probable partial thickness tear, neuritis/brachial radiculopathy,
bilateral carpal tunnel syndrome, and cervical disc syndrome. He attributed the left knee arthritis
to the 2013 work injury and indicated that she would likely need a total knee replacement at some
point in the future. Dr. Azer further diagnosed carpal tunnel syndrome aggravated and exacerbated
by her cervical spine injury that occurred at work. He recommended a right shoulder MRI scan
study.

4

A June 5, 2017 MRI scan study of the right shoulder revealed a tiny rim rent tear of the
most anterior fibers of the supraspinatus without retraction or fatty atrophy and mild tendinosis at
the infraspinatus.
In a June 19, 2017 report, Dr. Ignacio referred appellant to an orthopedic surgeon for the
progressive right shoulder and left knee injuries sustained on January 30, 2013 at work. He
disagreed with Dr. Franchetti that appellant had no residuals of her employment injury requiring
continued medical treatment and work restrictions.
Dr. Azer, in a June 30, 2017 progress report, attributed appellant’s right shoulder and left
knee conditions to her January 30, 2013 employment injury. He advised that appellant would
require a total knee replacement, a decompression of the right and left carpal tunnel, and a rotator
cuff repair.
On July 17, 2017 Dr. Ignacio reviewed appellant’s history of injury, the medical treatment
received, and listed findings on examination. He opined that she required physical therapy and
injections of her shoulder and knee, and recommended right shoulder surgery. Dr. Ignacio
provided the same diagnoses as in his prior reports, which he found were causally related to the
January 30, 2013 work injury. He concluded that appellant required further medical treatment.
In an August 4, 2017 report, Dr. Dawson evaluated appellant for problems with her cervical
spine, right shoulder, left knee, and low back. He provided examination findings and advised that
appellant sustained a twisting injury and impact to the right knee injuring the nerves of the cervical
and lumbar spine and brachial plexus and causing a knee contusion and possible chondromalacia
patellae. Dr. Dawson also opined that she may have sprained her shoulder. He found that appellant
could perform semi-sedentary work with ergonomic changes to her workstation. Dr. Dawson
diagnosed cervical and lumbar sprain/strain, discopathy, nerve impingement, rotator cuff tendinitis
with a possible small tear, a left knee contusion with mild chondromalacia patellae, and a partial
ACL tear. He recommended possible shoulder surgery. On August 10, 2017 Dr. Dawson
discussed the result of the right shoulder MRI scan study, noting that the findings included
degenerative changes at the AC joint, tangential tears, and multiple osteophytes. He advised that
it was “a definition of this case and should be taken into account with regards [to] the shoulder
itself.”
Appellant’s representative, on August 12, 2017, requested reconsideration. He argued that
Dr. Franchetti failed to review the MRI scan studies of her shoulders and maintains that the right
shoulder MRI scan study demonstrates that she had a continuing medical condition.
By decision dated November 9, 2017, OWCP denied modification of its August 18, 2016
decision.3 It found that the additional medical evidence was insufficient to overcome the special
weight accorded to Dr. Franchetti as the impartial medical examiner (IME).
On appeal appellant’s representative argues that OWCP failed to specifically address the
additionally submitted reports, including that of Dr. Azer. He maintains that Dr. Haskins did not
3
In the background section of the decision, OWCP referenced medical reports apparently from another case record.
It discussed the physicians from this record in providing the basis for its decision.

5

find that appellant had no further residuals of her accepted conditions. The representative asserts
that nonemployment-related conditions should be considered in determining her ability to work as
she was on the periodic rolls. He maintains that Dr. Franchetti’s opinion was not rationalized and
did not opine that all conditions had resolved, and that OWCP thus erred in terminating appellant’s
medical benefits. The representative notes that OWCP referred to physicians not of record in its
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
Section 8123(a) provides that, 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.9 The implementing regulation provides that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. 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.10
In situations where 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

4

See S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

5

See I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

See Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

6

of such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained cervical neuritis, neck sprain, a bilateral sprain of
the shoulder and upper arm, a right wrist sprain, a left elbow sprain, thoracic sprain, a pelvis sprain,
a left knee sprain, and unspecified lumbar disc disorders due to a January 30, 2013 employment
injury. It paid her wage-loss compensation for total disability beginning October 6, 2013. OWCP
properly determined that a conflict in medical opinion arose between Dr. Ignacio, appellant’s
attending physician, and Dr. Haskins, an OWCP referral physician, regarding her current condition
and the extent of her disability due to her employment injury. It referred her to Dr. Franchetti, a
Board-certified orthopedic surgeon, for an impartial medical examination.
Where there exist opposing medical reports of virtually equal weight and rationale and the
case is 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.12 The Board finds that the opinion of Dr. Franchetti is
well rationalized and based on a proper factual and medical history. Dr. Franchetti accurately
summarized the relevant medical evidence, provided detailed findings on examination, and
reached conclusions about appellant’s condition which comported with his findings.13 In a report
dated November 6, 2015, he reviewed the medical evidence of record, including the results of
diagnostic studies. On examination, Dr. Franchetti found no deficits in the upper or lower
extremity demonstrating radiculopathy, no spasm on examination of the cervical or lumbar spine,
but some tenderness, a bilateral negative straight leg raise, and no tenderness or loss of stability of
the left knee. He advised that appellant had reached MMI and could return to her employment,
which he noted was sedentary, without restrictions. Dr. Franchetti determined that she had
continued subjective complaints, but no objective findings showing any ongoing residuals of her
January 30, 2013 work injury. As his report is detailed, well rationalized, and based on a proper
factual background, his opinion is entitled to the special weight accorded an IME.14
The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss
compensation and medical benefits is insufficient to overcome the special weight afforded
Dr. Franchetti as the IME. In a November 18, 2015 CA-17 form, Dr. Ignacio advised that
appellant could resume her employment with restrictions. He also submitted progress reports
describing his continued treatment, including an April 6, 2016 progress report in which he found
her unable to work and recommended retirement. Dr. Ignacio, however, was on one side of the
conflict resolved by Dr. Franchetti. A medical report from a physician on one side of a conflict

11

R.C., 58 ECAB 238 (2006); David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

12

J.M., supra note 6; Darlene R. Kennedy, 57 ECAB 414 (2006).

13

Manuel Gill, 52 ECAB 282 (2001).

14

See J.M., supra note 6; Kathryn E. Demarsh, supra note 7.

7

resolved by an IME is generally insufficient to overcome the special weight accorded the report of
an IME or to create a new conflict.15
On March 25, 2016 Dr. Dawson opined that appellant had continued residuals of her work
injury, particularly from the lumbar disc injury and an ACL injury to her left knee causing
ligamentous insufficiency. He further found irritation of the brachial nerves. Dr. Dawson advised
that she could perform limited-duty employment. He, however, did not explain how appellant’s
January 30, 2013 work injury caused her to be disabled from sedentary employment or to require
additional medical treatment. A medical opinion not fortified by medical rationale is of little
probative value.16
The Board, therefore, finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective August 18, 2016.17
On appeal appellant’s representative contends that Dr. Haskins found that appellant had
residuals of her accepted injury, and that OWCP erred in terminating medical benefits. As
discussed, however, OWCP properly terminated medical benefits as both Dr. Haskins and
Dr. Franchetti found that she had continued subjective complaints unsupported by “significant”
objective findings.
Appellant’s representative also maintains that OWCP should have considered appellant’s
nonemployment-related conditions. The issue, however, was whether she had any further
disability or need for medical treatment due to her January 30, 2013 work injury.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates a claimant’s compensation benefits, he or she has the
burden of proof to establish continuing disability or residuals after that date causally related to the
accepted injury.18 To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such a causal
relationship.19 Causal relationship is a medical issue and the medical evidence required to establish
a causal relationship is rationalized medical evidence.20 A claimant must establish by the weight
of the reliable, probative, and substantial evidence that he or she had an employment-related

15

See Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

16

See A.M., Docket No. 17-0805 (issued July 13, 2018).

17

See G.T., Docket No. 17-1959 (issued June 22, 2018); D.G., Docket No. 17-0608 (issued March 19, 2018).

18

See J.R., Docket No. 17-1352 (issued August 13, 2018).

19

Id.

20

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

disability or residuals of his or her accepted condition which continued after termination of
compensation benefits.21
ANALYSIS -- ISSUE 2
The Board finds that the medical evidence of record is insufficient to establish that
appellant had continuing employment-related disability or residuals requiring further medical care
after the August 18, 2016 termination of wage-loss compensation and medical benefits.
Following the termination of her wage-loss compensation and medical benefits, appellant
submitted August 24, 2016 and August 4 and 10, 2017 reports from Dr. Dawson. On August 24,
2016 Dr. Dawson advised that Dr. Franchetti failed to adequately address her left knee effusion,
cervical radiculopathy, and impingement. He determined that appellant could work with
modifications to her chair and computer. In his August 4, 2017 report, Dr. Dawson opined that
her work injury caused cervical, lumbar, and brachial plexus nerve irritation, and possible
chondromalacia patellae. He found that appellant could perform semi-sedentary work. On
August 10, 2017 Dr. Dawson noted that a right shoulder MRI scan study showed AC joint
degenerative changes, tangential tears, and multiple osteophytes. While the reports from
Dr. Dawson are generally supportive of continuing employment-related residuals and disability,
they do not provide adequate medical rationale explaining how the diagnosed conditions or
resultant disability were caused by the employment injury.22 Further, OWCP has not accepted
brachial plexus nerve irritation, chondromalacia patellae, or a shoulder condition other than a
strain. Where appellant claims that a condition not accepted or approved by OWCP was due to
her employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.23
Dr. Dawson did not provide any rationale for his opinion that the work injury caused additional
conditions. Medical conclusions unsupported by rationale are of little probative value.24
Appellant also submitted additional reports from Dr. Ignacio. On August 31, 2016
Dr. Ignacio found that she was unable to work, noting that she had complaints of weakness and
pain radiating into her legs, and bilateral arm numbness. In an April 10, 2017 report, he opined
that appellant had continued problems with her knee, shoulders, left elbow, neck, and head due to
her January 30, 2013 employment injury, and diagnosed chronic cervical strain and neuritis,
chronic bilateral shoulder strain, probable right rotator cuff syndrome, chronic brachial neuritis,
chronic left elbow strain, chronic thoracolumbar strain with lumbar neuritis, chronic lumbar disc
syndrome with radiculopathy, chronic left knee strain and internal derangement, and chronic pain
syndrome. Dr. Ignacio determined that appellant could perform modified duties. On June 19,
2017 he disagreed with the finding of the IME, Dr. Franchetti, that she had no residuals of her
work injury or need for work restrictions, and discussed her progressive problems with her left
knee and right shoulder. In a July 17, 2017 report, Dr. Ignacio advised that appellant required
21

See supra note 18.

22

See G.T., supra note 17.

23

Jaja K. Asaramo, supra note 15.

24

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

9

additional medical treatment for her shoulder and knee and right shoulder surgery. As previously
noted, the Board has long held that reports from a physician who was on one side of a medical
conflict resolved by an IME are generally insufficient to overcome the special weight accorded to
the report of the IME or to create a new conflict.25 The Board finds that as Dr. Ignacio was on one
side of the conflict resolved by Dr. Franchetti, his additional reports are of insufficient weight to
overcome the special weight accorded to Dr. Franchetti’s opinion or to create a new medical
conflict.26
Dr. Azer, on March 13, 2017, evaluated appellant for right shoulder, neck, and left knee
pain subsequent to a January 30, 2013 work injury. He diagnosed post-traumatic left knee arthritis
with chronic ACL insufficiency, impingement syndrome of the right shoulder with a probable
partial thickness tear, brachial neuritis/radiculopathy, cervical disc syndrome, and bilateral carpal
tunnel syndrome. Dr. Azer found that appellant’s work injury caused her left knee arthritis and
aggravated her carpal tunnel syndrome. He recommended diagnostic testing. Dr. Azer, did not
address whether appellant was disabled from employment, noting in his report that she was
working. He failed to explain how her work injury caused the additional diagnosed conditions of
left knee arthritis and an aggravation of carpal tunnel syndrome. Medical evidence that states a
conclusion, but does not offer any rationalized medical explanation regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.27
On June 30, 2017 Dr. Azer opined that appellant had a continued right shoulder and left
knee condition that required surgery, and attributed the conditions to her work injury. Again,
however, he did not provide any rationale for his opinion, and thus it is of diminished probative
value.28
On appeal appellant’s representative contends that OWCP citied the wrong physicians in
its November 9, 2017 decision. OWCP, in the background section of its decision, referred to
reports from physicians apparently from another case record. In providing the basis for its
decision, however, it properly reviewed the reports relevant to the current file number.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective August 18, 2016 as she no longer had residuals of her January 30, 2013

25

See R.B., Docket No. 16-1481 (issued May 2, 2017); I.J., supra note 5.

26

See G.T., supra note 17.

27

See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

28

Id.

10

employment injury. The Board further finds that she has not established continuing employmentrelated disability or residuals after August 18, 2016.
ORDER
IT IS HEREBY ORDERED THAT the November 9, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

11