United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Reynoldsburg, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1162
Issued: December 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 2, 2012 appellant, through her attorney, filed a timely appeal of a December 21,
2011 merit decision and a January 12, 2012 nonmerit 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 to consider the merits of
the case.
ISSUES
The issues are: (1) whether OWCP properly denied a claim for a recurrence of disability
on July 18, 2011 causally related to her January 23, 2002 employment injury; and (2) whether
the Branch of Hearings and Review properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On March 4, 2002 appellant, then a 46-year-old clerk, filed a traumatic injury claim
alleging that she fell in the performance of duty on January 23, 2002 injuring her shoulder, arm
1

5 U.S.C. § 8101 et seq.

knee and head. In a letter dated March 27, 2002, Dr. Robert A. Durbin, a Board-certified
orthopedic surgeon, noted appellant’s fall and stated that her knee and shoulder pain had
improved. OWCP accepted appellant’s claim for left knee sprain, left knee contusion and left
knee tendinitis on April 17, 2002. Dr. Durbin performed a left knee arthroscopy on May 24,
2002 and diagnosed a chondral flap separation in the medial femoral condyle. He performed an
arthroscopy with arthroscopic lateral release of the left knee on July 11, 2003. OWCP accepted
the additional conditions of left chondral flap separation and left hemarthrosis.
Appellant returned to limited-duty work on October 16, 2003.
The employing
establishment offered her a modified distribution clerk position on October 19, 2004 working
from 6:30 a.m. to 3:30 p.m. with one hour for lunch. Appellant accepted this position and began
working on November 13, 2004.
By decision dated August 1, 2005, OWCP reduced appellant’s compensation benefits to
zero based on a finding that the modified distribution clerk position fairly and reasonably
represented her wage-earning capacity.
OWCP granted appellant, effective September 28, 2005, a schedule award for 10 percent
impairment of the left lower extremity. It denied appellant’s claim for an additional schedule
award on December 5, 2009. By decision dated July 29, 2010, OWCP granted her a schedule
award for an additional 20 percent impairment of her left lower extremity.
Appellant underwent a esophagogastroduodenoscopy (EDG) on December 16, 2009 due
to heartburn. This test revealed mild reactive gastropathy with chronic inflammation and grade 2
esophagitis in the gastroesophageal junction. Appellant underwent additional testing on
January 26, 2011 which included evidence of hepatitis A exposure in the past.
Dr. Durbin examined appellant on March 24, 2011 and noted her reports of bilateral
shoulder and neck pain. He described her fall on January 23, 2002 and noted that she landed on
her knees and braced her fall with both arms. Appellant reported a recent exacerbation of
shoulder pain. She underwent magnetic resonance imaging (MRI) scans which revealed tears of
her rotator cuffs bilaterally with some migration of her biceps tendon on the left side. Appellant
also reported pain in her paracervical region and underwent an MRI scan which demonstrated
some cervical spondylosis and disc bulging.
Appellant requested medical treatment for her neck and shoulders attributing her
conditions to her January 23, 2002 fall. She stated that, although she had shoulder pain, the antiinflammatory medication that she used controlled her symptoms. On February 24, 2011
appellant underwent an MRI scan of the right shoulder which demonstrated a full-thickness tear
of the anterior portion of the supraspinatus tendon but no evidence of labral tear.
By decision dated May 4, 2011, OWCP denied appellant’s request to expand her claim to
include bilateral rotator cuff tears as causally related to her January 23, 2002 employment injury.
Appellant requested reconsideration.
Appellant filed claims for compensation requesting wage-loss compensation from July 18
through 28, 2011 and August 15 through September 9, 2011. In a report dated July 14, 2011,
Dr. Durbin examined her due to chronic knee pain secondary to osseous contusion related to a
fall. Appellant noted that her liver functions were abnormal and that she had been advised to get
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off all of her medication. He recommended that she limit her time on her feet and work only
four to six hours a day. Dr. Durbin completed a report on July 29, 2011 and provided work
restrictions of four hours a day due to knee pain to allow her to rest and elevate her knee to
reduce inflammation. In a letter dated August 9, 2011, OWCP requested that appellant provide
additional evidence in support of her claim for compensation.
Dr. Durbin completed a form report on August 8, 2011 and stated that appellant should
limit the hours on her feet to help decrease inflammation and swelling.
In a letter dated August 23, 2011, appellant described her employment injury on
January 23, 2002 and stated that she fell hitting her arm, shoulder and head. She stated that she
had taken pain medication including Darvocet, Ibuprofen, Naproxen and Tramatol. Appellant
stated that her knee remained swollen and that her shoulders had pained her since the injury, but
were controlled due to her knee medications. She noted that her liver functions had changed due
to her use of anti-inflammatories and that her physician advised her to reduce usage of these pain
medications. Appellant attributed her severe knee pain, two torn rotator cuffs and bulging
cervical disc to her employment injury in 2002.
Dr. Durbin completed a note dated August 25, 2011 and stated that appellant had
persistent knee pain which was controlled with oral nonsteroidals (NSAID) and analgesic
medication. He noted that she had liver abnormalities which were “most likely related to her
chronic use of nonsteroidal medications.” Dr. Durbin stated that due to appellant’s inability to
continue to use NSAID medications she was unable to perform her job duties. He recommended
that she reduce her work hours from six hours to four hours a day with only one hour of standing.
Dr. Durbin stated that appellant could sit for an unlimited period of time. He diagnosed chronic
knee pain and abnormal liver functions due to treatment of chronic knee pain.
By decision dated September 2, 2011, OWCP denied appellant’s request for
reconsideration finding that she failed to submit relevant new evidence to establish total
disability due to her accepted conditions.
Appellant submitted a report dated September 6, 2011 from Dr. Kevin Granger, a
chiropractor, diagnosing cervical spine degeneration due to her 2002 employment injury.
On January 2, 2010 Dr. Madhu Mehta, a Board-certified rheumatologist of professorial
rank, diagnosed advanced osteoarthritis of the left knee and gastritis secondary to NSAIDs. He
noted that appellant had elevated liver enzymes and was advised to “slow down” on most of her
medications including NSAIDs. Dr. Mehta recommended knee replacement.
By decision dated September 21, 2011, OWCP denied appellant’s claim for recurrence of
disability beginning July 18, 2011. It found that Dr. Durbin did not provide medical rationale
explaining why appellant could not work a full day with restrictions of alternating sitting and
standing.
Appellant requested reconsideration on October 6, 2011. In a letter dated October 3,
2011, she stated that she could no longer use pain medication and therefore no longer work full
time. Appellant stated that based on her physician’s reports she could only work four hours a
day.

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Dr. Durbin completed a report on October 21, 2011 and noted appellant’s history of
injury in 2002. He noted that appellant had used Darvocet and Ibuprofen to manage her pain, but
had recently been diagnosed with elevated liver enzymes and taken off all her medications.
Without medication appellant reported increased pain which made it extremely difficult for her
to perform her work duties. Dr. Durbin found that appellant had no true knee instability, but
some soft tissue swelling with full range of motion in her knees. He noted that meniscal grind
maneuvers were unremarkable and that she had normal muscle strength in her lower extremities
with normal sensation. Dr. Durbin diagnosed chronic pain of the left knee following
arthroscopic lateral release. He stated that appellant was disabled due to her inability to take
pain medication.
By decision dated December 21, 2011, OWCP denied modification of appellant’s
recurrence of disability claim. It found that the medical evidence did not establish a change in
the nature and extent of appellant’s work-related condition.
Counsel requested an oral hearing before an OWCP hearing representative on
December 27, 2011. By decision dated January 12, 2012, the Branch of Hearings and Review
denied appellant’s request for an oral hearing on the grounds that she had previously requested
reconsideration and received a decision on her reconsideration request on December 21, 2011.
The Branch of Hearings and Review stated that under these circumstances appellant was not
entitled to a hearing on the same issue as a matter of right. The Branch of Hearings and Review
further found that the case could equally well be addressed through the reconsideration process
with new evidence establishing her total disability beginning July 18, 2011.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.3 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.4
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was
erroneous.5 OWCP’s procedures provide that, if a formal loss of wage-earning capacity decision
has been issued, the rating should be left in place unless the claimant requests resumption of
compensation for total wage loss. In this instance, the claims examiner will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
2

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
3

K.R., supra note 2; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503,
505 (1984).
4

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

5

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

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capacity.6 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.7
When a formal loss of wage-earning capacity determination is in place and light duty is
withdrawn, the proper standard of review is not whether appellant sustained a recurrence of
disability, but whether OWCP should modify its decision according to the established criteria for
modifying a formal loss of wage-earning capacity determination.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left knee sprain, left knee contusion and left
knee tendinitis as a result of her fall on January 23, 2002 in the performance of duty. Appellant
also underwent left knee arthroscopy on May 24, 2002 due chondral flap separation in the medial
femoral condyle. OWCP accepted the additional conditions of left chondral flap separation and
left hemarthrosis. Appellant returned to work on November 13, 2004 and OWCP found that this
position fairly and reasonably represented her wage-earning capacity on August 1, 2005.
Appellant filed a claim for compensation beginning July 18, 2011 and alleged that she
could no longer perform her work duties. OWCP determined that the issue was whether she
sustained a recurrence of disability. As there is an August 1, 2005 loss of wage-earning capacity
determination in place, OWCP was obligated to evaluate the evidence to determine if
modification of the loss of wage-earning capacity was warranted.9 As noted above appellant’s
entitlement to compensation is based on the loss of wage-earning capacity determination and it
remains undisturbed until modified.
On remand, OWCP must evaluate the record to determine whether appellant had
established a modification of the loss of wage-earning capacity issued by decision of OWCP on
August 1, 2005. After this and such further development of these issues as it deems necessary,
OWCP should issue a de novo decision on appellant’s claims for compensation.10
CONCLUSION
The Board finds that the case is not in posture for a decision on whether appellant’s
disability commencing on July 18, 2011 is compensable.
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See also FECA Transmittal 10-01 (issued October 5, 2009).
7

Selden H. Swartz, 55 ECAB 272, 278 (2004).

8

K.R., supra note 2; K.R., Docket No. 09-28 (issued September 16, 2009); Debbie A. Titus, Docket No. 05-360
(issued June 3, 2005).
9

See C.S., Docket No. 12-626 (issued September 20, 2012); Katherine T. Kreger, 55 ECAB 633 (2004). The
Board notes that consideration of the modification issue does not preclude OWCP from acceptance of a limited
period of employment-related disability, without a formal modification of the loss of wage-earning capacity
determination. See also Sharon C. Clement, supra note 4.
10

Due to the disposition of OWCP’s December 21, 2011 decision, the second issue of whether OWCP’s BH&R
properly denied appellant’s request for an oral hearing is moot and will not be addressed in this decision of the
Board.

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ORDER
IT IS HEREBY ORDERED THAT the January 12, 2012 and December 21, 2011
decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded
for further development consistent with this decision of the Board.
Issued: December 19, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Columbia, SC,
Employer
__________________________________________

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Appearances:
Hammond A. Beale, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-245
Issued: July 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 6, 2006 appellant, through his attorney, filed a timely appeal from a
December 16, 2005 merit decision of the Office of Workers’ Compensation Programs denying
modification of its termination of his compensation, a March 27, 2006 decision denying his
request for reconsideration and an October 23, 2006 decision denying modification of its
termination of his compensation. Pursuant to 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 the Office properly terminated appellant’s compensation
effective January 26, 2004 on the grounds that he had no further disability due to his October 11,
2001 employment injury; (2) whether the Office properly terminated authorization for medical
treatment; and (3) whether appellant has established that he had continuing disability after
January 26, 2004 due to his October 11, 2001 employment injury.

FACTUAL HISTORY
On October 11, 2001 appellant, then a 40-year-old mail handler, sustained a low back
injury due to repetitive lifting and stooping. The Office accepted his claim for lumbar strain.
Appellant stopped work on October 12, 2001 and returned to limited-duty work on
October 15, 2001.
In a report dated February 1, 2001, Dr. Putrina Dunlap-Deas, a Board-certified orthopedic
surgeon, diagnosed a herniated disc at L4-5, mechanical back pain and paraspinal muscle
spasms. She found that appellant could resume his usual work.
In a form report dated April 1, 2003, Dr. Ezra B. Riber, a Board-certified
anesthesiologist, diagnosed degenerative disc disease of the lumbar spine and opined that
appellant could not work.
On April 24, 2003 the Office referred appellant to Dr. Eugene Powell, Jr., a Boardcertified orthopedic surgeon, for a second opinion examination. Dr. Powell examined appellant
on May 6, 2003. He diagnosed low back and sacral pain with “minimal objective findings other
than tenderness over the lower sacrum and upper coccyx.” Dr. Powell noted that appellant had
numerous prior injuries to his back. He stated that he saw no “objective residuals directly
attributed to the work injury.” Dr. Powell recommended a magnetic resonance imaging (MRI)
scan study of the lumbar spine prior to indicating a return to work date.
An MRI scan study of the lumbar spine, performed on May 27, 2003, revealed a
“degenerated circumferential bulging disc with [a] posterior central disc protrusion” at L4-5. An
MRI scan study of the coccyx, performed on May 27, 2003, was normal. On June 2, 2003
Dr. Powell reviewed the MRI scan studies and stated: “[Appellant’s] final diagnosis is
subject[ive] low back pain with minimal objective findings. I believe that the previously
diagnosed lumbar strain has resolved and I do not find any objective residuals directly attributed
to the work injury. I see no reason that [appellant] cannot return to work as a mail handler
without restrictions.”
On June 20, 2003 the Office requested that Dr. Riber review and comment on
Dr. Powell’s reports. In a response dated July 3, 2003, he recommended a functional capacity
evaluation (FCE) prior to determining appellant’s work restrictions. Dr. Riber diagnosed
intractable leg and back pain due to chronic lumbar strain and degenerative disc disease at L4-5.
Appellant returned to work on June 23, 2003 but stopped work on June 29, 2003 and filed
a notice of recurrence of disability. The Office notified him that it was developing his notice of
recurrence of disability as a new injury claim, assigned file number 062092393.
The Office determined a conflict existed between Dr. Riber and Dr. Powell regarding
whether appellant had any residuals from his employment injury.1 On August 25, 2003 the
Office referred appellant to Dr. Scott A. Stegbauer, a Board-certified orthopedic surgeon, for an
impartial medical examination. On September 12, 2003 appellant’s attorney wrote Dr. Stegbauer
1

In a progress report dated September 8, 2003, Dr. Riber diagnosed probable lumbar facet joint syndrome.

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and enclosed medical reports for his review. In a report dated September 18, 2003,
Dr. Stegbauer found that appellant had no objective findings and could perform his usual
employment. On October 10, 2003 the Office informed appellant’s attorney that contact with an
impartial medical examiner was prohibited and that it would schedule another impartial medical
examination. On October 17, 2003 the Office referred appellant, together with the case record
and a statement of accepted facts, to Dr. Joseph J. Estwanik, a Board-certified orthopedic
surgeon, for an impartial medical examination. The Office informed Dr. Estwanik that he was
selected to resolve a conflict in opinion on whether appellant had a residual condition or
disability due to his employment injury.2
By letter dated November 7, 2003, appellant’s attorney asked the Office to provide
support for its conclusion that contact with the referee physician was prohibited. He also asked
whether the new impartial medical examiner would be provided with x-rays and MRI scan
studies. In a response dated November 18, 2003, the Office explained that communication with
an impartial medical examiner was “sufficient to bias the report.” The Office noted that it had
provided the x-rays and MRI scan studies to Dr. Estwanik for review.
In a report dated November 11, 2003, Dr. Estwanik reviewed the history of injury and
discussed appellant’s subjective complaints. On examination he found conflicting results on
straight leg raise test. Dr. Estwanik reviewed the May 27, 2003 MRI scan study and found a
degenerative disc bulge at L4-5 without nerve root compromise or a significant degenerative
signal change. He determined that appellant had “no significant objective abnormality” on
examination and that his “subjective complaints do not correspond with the objective findings,
where [he] was able to comfortably sit on the table with both legs full[y] extended at the knee.”
Dr. Estwanik stated:
“I, therefore, find no objective residuals directly attributable to his work injury of
October 11, 2001 and these were not objectively substantiated even by MRI
[scan] [study]. I, therefore, feel that any claim of that date is not causing any
continuing disability. I do feel that [appellant] can return to work as a mail
handler as there are no objective physical exam[ination] findings or imaging
findings related to a traumatic rather than degenerative diagnosis. I, therefore,
feel that a return to work will be good for his spine, so that he resumes more
normal functional activity.”
Dr. Estwanik noted that MRI scan studies obtained over a period of a few years showed
“no significant underlying anatomic defects.” In an accompanying work restriction evaluation,
he opined that appellant could work full time without restrictions.
On December 5, 2003 the Office notified appellant that it proposed to terminate his
compensation and authorization for medical benefits on the grounds that the evidence established
that he had no further disability or condition due to his October 11, 2001 employment injury. In
a January 5, 2004 response, appellant’s attorney argued that the Office wrongly scheduled the
second opinion evaluation more than 60 miles and the impartial medical examination 100 miles
2

On October 13 and 14, 2003 a physical therapist performed an FCE and found that appellant could work at a
medium level.

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away from appellant’s residence. Counsel further contended that the statement of accepted facts
did not fully discuss all relevant medical treatment and that the referral physicians were not
provided with the complete record. He also asserted that the Office erroneously provided
Dr. Estwanik with Dr. Stegbauer’s report even though it was excluded and did not provide
Dr. Estwanik with a statement describing the conflict. He further argued that Dr. Estwanik’s
report was biased as he discounted the FCE and failed to ask appellant about his work activities.
The attorney also noted that appellant’s attending physician refused to treat him on
December 15, 2003 even though his medical benefits were not yet terminated.
By decision dated January 26, 2004, the Office terminated appellant’s compensation and
entitlement to medical benefits effective that date. The Office indicated that, while
Dr. Stegbauer’s opinion was not entitled to the special weight provided an impartial medical
examiner due to contact with appellant’s attorney, it did not need to be excluded from the record.
The Office further explained that Dr. Powell was the closest physician who participated with the
company that scheduled second opinion examinations for the Office and that Dr. Estwanik was
the first physician in the Physicians Director System (PDS) who accepted workers’
compensation and did not require the preview of files or prepayment. The Office noted that the
statement of accepted facts did not need to include a complete history of medical treatment and
that it provided complete medical records to the referral physicians. The Office also indicated
that appellant’s case was open prior to the termination for medical treatment for his accepted
condition of lumbar strain and that Dr. Estwanik received a statement notifying him of the
conflict in medical opinion.
On January 28, 2004 appellant, through his attorney, requested an oral hearing, which
was held on September 2, 2004. He submitted reports from Chester L. Ferguson, a chiropractor,
dated September 2004. Dr. Ferguson found degenerative changes at L4-5 by x-ray. By decision
dated November 29, 2004, the Office hearing representative affirmed the January 26, 2004
decision. The hearing representative noted that the record contained no recent medical evidence
addressing appellant’s October 11, 2001 work injury.
On April 7, 2005 appellant, through his attorney, requested reconsideration. He
submitted a report dated January 13, 2005 from Dr. Steven C. Poletti, a Board-certified
orthopedic surgeon, who discussed appellant’s history of 1995 and 1999 work injuries.
Dr. Poletti diagnosed disc disruption at L4-5 and recommended an MRI scan study. In a
January 25, 2005 progress report, he noted that an MRI scan showed a “broad base disc
protrusion at L4-5 eccentric toward the left extending into the neuroforamen where an annual
tear is identified.” Dr. Poletti opined that appellant should perform modified duty. On April 8,
2005 he diagnosed disc disruption and degeneration at L4-5, listed work restrictions and
recommended possible surgical intervention.
By decision dated July 20, 2005, the Office denied modification of the November 29,
2004 decision. Appellant, through counsel, requested reconsideration on July 22, 2005. He
submitted a discography dated June 28, 2005, which revealed abnormalities at the L4-5 disc
level. In a decision dated August 29, 2005, the Office denied modification of its July 20, 2005
decision.

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Appellant again requested reconsideration on September 9, 2005. He submitted form
reports from Dr. Poletti dated October 11, 2005. Dr. Poletti diagnosed a lumbar disc herniation
and found that he was disabled from employment. By decision dated December 16, 2005, the
Office denied modification of its August 29, 2005 decision.
Appellant appealed to the Board. On November 1, 2005 the Board dismissed appellant’s
appeal at the request of counsel so that he could request reconsideration before the Office.3
In a report dated September 29, 2005, Dr. Frampton W. Henderson, Jr., Board-certified in
family practice, noted that he had treated appellant since 1990. He related that appellant
experienced no back problems until he sustained an injury at work on April 19, 1995 pulling a
heavy cart.
On December 21, 2005 appellant, through his attorney, requested reconsideration. By
decision dated March 27, 2006, the Office denied merit review pursuant to 5 U.S.C. § 8128.
Appellant appealed to the Board. In an order dated August 21, 2006, the Board remanded
the case for the Office to obtain medical reports missing from the record.4 On September 22,
2006 the Office requested that appellant’s attorney submit Dr. Poletti’s May 10, July 20 and
November 11, 2005 reports and Dr. Henderson’s September 29, 2005 report.
In a report dated May 10, 2005, Dr. Poletti noted that appellant “had a traumatic disc
herniation in 1995, worsening of his condition in 1999 and subsequent complaints of back pain
secondary to this in 2003 and MRI [scan] [study] shows continual worsening of the problem on
the 2005 MRI [scan] [study], as compared to the 2003 MRI [scan] [study].” He found that
appellant could perform modified duty but noted that the employing establishment had denied
him work within his restrictions. Dr. Poletti concluded: “[Appellant] has a traumatic job[-]
related injury and has impairment to his lumbar spine and legs as a result of this.” In form
reports dated October 11, 2005 and January 6, 2006, he diagnosed a lumbar disc herniation and
found that appellant could not work.5
By decision dated October 23, 2006, the Office denied modification of its August 29,
2005 decision. The Office noted that the medical evidence did not establish that appellant had
residuals of his October 11, 2001 employment injury. The Office noted that the evidence
supported that his condition resulted from his July 28, 2003 employment injury, assigned file
number 062092393. The Office also indicated that appellant may have sustained an occupational
disease.

3

Order Dismissing Appeal, Docket No. 05-1908 (issued November 1, 2005).

4

Order Remanding Case, Docket No. 06-1136 (issued August 21, 2006).

5

By letter dated October 6, 2006, appellant’s attorney noted that there did not appear to be a report by Dr. Poletti
dated November 11, 2005.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.6 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7
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.8 The implementing regulation states 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 Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.9 In situations 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.10
A physician selected by the Office to serve as an impartial medical specialist should be
one wholly free to make a completely independent evaluation and judgment. To achieve this, the
Office has developed specific procedures for selecting impartial medical specialist to provide
adequate safeguards against any possible appearance that the selected physician’s opinion was
biased or prejudiced. Office procedures provide that the selection of referee physicians is made
by a strict rotational system using appropriate medical directories and specifically state that the
PDS should be used for this purpose. The procedures explain that the PDS is a set of stand-alone
software programs designed to support the scheduling of second opinion and referee
examinations and states that the database of physicians for referee examinations is obtained from
the MARQUIS Directory of Medical Specialists.11 The procedures contemplate that impartial
medical specialist will be selected from Board-certified specialists in the appropriate

6

Gloria J. Godfrey, 52 ECAB 486 (2001).

7

Gewin C. Hawkins, 52 ECAB 242 (2001).

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

10

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7 (May 2003);
Albert Cremato, 50 ECAB 550 (1999).

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geographical area on a strict rotating basis in order to negate any appearance that preferential
treatment exists between a particular physician and the Office.12
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar strain due to an October 11, 2001
employment injury. Appellant began working in limited duty starting October 15, 2001. He
stopped work in April 2003 and resumed work on June 23, 2003. Appellant again stopped work
on June 29, 2003.13
The Office determined that a conflict existed between Dr. Riber, appellant’s attending
physician, who diagnosed degenerative disc disease of the lumbar spine and found that he was
unable to work and Dr. Powell, an Office referral physician, who found that appellant had no
further residuals of his October 11, 2001 employment injury. He argued that the Office erred in
referring him to Dr. Powell as his office was more than 60 miles from his residence. The Office,
however, noted that Dr. Powell was the closest physician who participated with the company that
scheduled second opinion examinations. The Office’s procedure manual provides that “[s]econd
opinion examinations are generally conducted by a doctor selected by a medical referral group
that has contracted with [the Office] to provide second opinion medical referrals.”14
The Office referred appellant to Dr. Stegbauer for an impartial medical examination. On
September 12, 2003 appellant’s attorney contacted Dr. Stegbauer by mail and enclosed medical
reports for his review. The Office properly determined that the communication between the
attorney and Dr. Stegbauer created an appearance of impropriety sufficient to warrant the referral
of appellant to another physician for resolution of the conflict.15
On October 17, 2003 the Office referred appellant to Dr. Estwanik for an impartial
medical examination. Appellant contended that the Office erred in referring him to Dr. Estwanik
as the physician’s office was located 100 miles from his residence. Office’s procedures provide
that the selection of referee physicians are made by a strict rotational system using appropriate
medical directories and specifically state that the PDS should be used for this purpose. The
procedures contemplate that impartial medical specialist will be selected from Board-certified
specialists in the appropriate geographical area on a strict rotating basis in order to negate any
appearance that preferential treatment exists between a particular physician and the Office.16
The Office explained that it scheduled appointments with the first physician in the PDS
unaffiliated with appellant’s case who accepted workers’ compensation cases. The Board notes
12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (March 2004);
see also Willie M. Miller, 53 ECAB 697 (2002); Arden E. Butler, 53 ECAB 680 (2002).
13

Appellant filed a notice of recurrence of disability; however, the Office found that he was alleging a new work
injury because he attributed his condition to new employment factors.
14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7 (May 2003).

15

See generally Carlton L. Owens, 36 ECAB 608 (1985) (finding that oral communications should not occur
between the Office and impartial medical examiners as it undermined the appearance of impartiality).
16

See supra note 12.

7

that appellant did not submit a written request to participate in selecting the impartial medical
examiner or object to the physician selected until the Office issued its notice proposing
termination of compensation benefits. Appellant further did not provide any evidence that the
Office failed to comply with its rotational procedures. The Board has held that an impartial
medical specialist properly selected under the Office’s rotational procedures will be presumed
unbiased and the party seeking disqualification bears the substantial burden of proving
otherwise. Mere allegations are insufficient to establish bias.17
Appellant additionally contended that the Office did not provide Dr. Estawnik with a
statement describing the conflict, the complete medical record or a statement of accepted facts
which included a summary of his medical treatment. The Office, however, informed
Dr. Estwanik of the existence of the conflict in its October 17, 2003 referral letter and noted that
it was enclosing a copy of the medical record. In his November 11, 2003 report, Dr. Estwanik
clearly discussed the relevant medical evidence. The statement of accepted facts provided to him
properly lists the accepted conditions and history of injury. There is no requirement that the
statement of accepted facts include a history of medical treatment received.18
Where there exists a conflict in medical opinion and the case is referred to an impartial
medical specialist for resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, is entitled to special weight.19 The
Board finds that the opinion of Dr. Estwanik, a Board-certified orthopedic surgeon selected to
resolve the conflict in opinion, is based on a proper factual and medical history, is well
rationalized and supports that appellant’s disability due to his employment injury ceased by
January 26, 2004. Dr. Estwanik provided a thorough factual and medical history and accurately
summarized the relevant medical evidence. Additionally, he provided a proper analysis of his
findings on examination and reached conclusions about appellant’s condition which comported
with his findings.20 Dr. Estwanik determined that physical examination revealed no “significant
objective abnormality” and that his most recent MRI scan study showed degenerative bulging at
L4-5 without evidence of nerve root compromise. He indicated that appellant’s subjective
complaints were unsupported by objective findings. Dr. Estwanik opined that appellant had no
further residual condition or disability due to his October 11, 2001 employment injury and could
resume his usual employment. He provided rationale for his opinion by explaining that the
results of diagnostic studies showed “no significant underlying anatomic defects” and that his
findings on examination revealed no objective findings supporting a continuing diagnosis due to
a traumatic injury. As Dr. Estwanik’s report is detailed, well rationalized and based on a proper
factual background, his opinion is entitled to the special weight accorded to an impartial medical

17

See Willie M. Miller, supra note 12.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.12
(June 1995).
19

Jaja K. Asaramo, 55 ECAB 200 (2004).

20

Manuel Gill, 52 ECAB 282 (2001).

8

examiner and is sufficient to meet the Office’s burden of proof to terminate appellant’s
compensation benefits.21
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.22 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.23
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Estwanik, the impartial medical examiner, who found that appellant’s
accepted condition of lumbar strain had resolved. He provided rationale for his opinion by
explaining that the findings on physical examination and diagnostic studies showed that
appellant had no further disability or condition due to his employment injury. Dr. Estwanik’s
opinion, as the impartial medical examiner, represents the weight of the medical evidence and
establishes that appellant has no further residuals of his employment-related medical condition
requiring further medical treatment. The Office thus properly terminated authorization for
medical treatment.24
LEGAL PRECEDENT -- ISSUE 3
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to him to establish that he had continuing disability after that date related to his
accepted injury.25 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.26 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.27 Rationalized medical evidence
is evidence which includes a physician’s rationalized medical opinion on the issue of whether
there is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
21

See Barbara J. Warren, 51 ECAB 413 (2000).

22

Pamela K. Guesford, 53 ECAB 727 (2002).

23

Id.

24

Id.

25

See Manual Gill, supra note 20.

26

Id.

27

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

supported by medical rationalize explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.28 Neither the 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 causal relationship.29
ANALYSIS -- ISSUE 3
Subsequent to the Office’s termination of compensation, appellant submitted chiropractic
reports dated September 2004 from Dr. Ferguson, who found degenerative changes at L4-5 by
x-ray. Section 8101(2) of the Federal Employees’ Compensation Act provides that the “term
‘physician’ includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist….”30 Dr. Ferguson did not diagnose a spinal subluxation by
x-ray, he is not a physician as defined under the Act.
In a report dated January 13, 2005, Dr. Poletti discussed appellant’s 1995 and 1999
employment injuries. He diagnosed a left disc protrusion at L4-5 and annual tear by MRI scan.
Dr. Poletti found that appellant should perform modified work. In a progress report dated
April 8, 2005, he diagnosed disc disruption and degeneration at L4-5 and listed physical
limitations. In form reports dated October 11, 2005, Dr. Polleti diagnosed a lumbar disc
herniation and opined that appellant was totally disabled. In a report dated May 10, 2005,
Dr. Poletti noted that appellant had a history of a disc herniation in 1995, which became worse in
1999 and 2003. He found that appellant could work limited duty. In form reports dated
October 11, 2005 and January 6, 2006, Dr. Poletti diagnosed a lumbar disc herniation and found
that appellant could not work. However, Dr. Poletti did not discuss appellant’s October 11, 2001
employment injury or relate any diagnosed condition to that injury. Consequently, his reports
are of diminished probative value and insufficient to overcome the special weight accorded
Dr. Estwanik’s opinion or to create a new conflict.
In a report dated September 29, 2005, Dr. Henderson indicated that appellant did not
experience back problems until an April 19, 1995 work injury. As he did not address the
relevant issue of whether appellant had any further condition or disability due to his October 11,
2001 employment injury, his opinion is of little probative value.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical treatment effective January 26, 2004 on the grounds that he had no
further disability due to his October 11, 2001 employment injury. The Board further finds that

28

Leslie C. Moore, 52 ECAB 132 (2000).

29

Ernest St. Pierre, 51 ECAB 623 (2000).

30

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

10

appellant has not established that he had continuing disability after January 26, 2004 due to his
October 11, 2001 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 23 and March 27, 2006 and December 16, 2005 are
affirmed.
Issued: July 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTION SERVICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 13-1628
Issued: November 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2013 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs (OWCP) dated June 6, 2013. 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 developed an asbestos-related condition due to factors of
his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 58-year-old police officer, filed a Form CA-2 claim for occupational disease
on January 16, 2013, alleging an asbestos-related condition due to working in a building
undergoing asbestos abatement.
On March 14, 2013 OWCP advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked him
to submit a comprehensive medical report from his treating physician describing his symptoms
and the medical reasons for his condition, and an opinion as to whether his claimed condition
was causally related to his federal employment, and a diagnosis of his claimed condition.
OWCP requested that appellant submit the additional evidence within 30 days.
In an April 3, 2013 statement, appellant asserted that the building where he worked on a
daily basis began undergoing some structural work and abating floors that had asbestos in
January 2013. He worked on the second floor where air quality testing showed positive test results
for asbestos exposure. Appellant stated that the floor had been evacuated and that a clean-up
process was underway.
In a report dated February 19, 2013, Dr. Robert Sussman, Board-certified in critical care
medicine, conducted an examination of appellant because he worked in a building that was found
to have asbestos. The construction had been ongoing in the building over the past year; apparently
a significant amount of asbestos had been released into the air and abatement of the asbestos was
currently taking place. Dr. Sussman advised that, given the possibility that appellant had
experienced long-term exposure to asbestos, a pulmonary evaluation had been requested. On
examination appellant had no symptoms of dyspnea on exertion, cough, chest pain or unexplained
weight loss. Appellant related that he had recurrent bronchitis approximately once per year,
typically in the winter, and had no history of asthma or wheezing.
Dr. Sussman stated that appellant had a history of gastroesophageal reflux, allergic rhinitis
and hypertension, with no known allergies. His lungs were clear with no wheezing or rales, no
tactile fremitus or hyperresonance to percussion. Dr. Sussman obtained chest x-rays which showed
a poor inspiration with borderline heart size, with no pleural disease or evidence for interstitial
disease. Appellant also underwent pulmonary function tests which revealed a mild reduction in the
vital capacity and expiratory reserve volume (ERV) with the remainder of the lung volumes and
the diffusing capacity normal.
Dr. Sussman concluded that appellant had experienced a very low level of asbestos
exposure for 18 years, with more pronounced asbestos exposure over the past year. He showed no
evidence of any pulmonary pathology. Dr. Sussman opined that appellant probably had low
potential for future asbestos-related problems, including asbestosis, bronchogenic carcinoma or
mesothelioma. He noted that he had a small nodule in the left lower lobe and recommended a
computerized tomography (CT) scan of the chest.
In a February 19, 2013 report, Dr. Terrence H. Lee, Board-certified in diagnostic
radiology, noted that appellant reported with symptoms of coughing and a history of asbestos
exposure. Appellant underwent frontal and lateral chest radiographic tests. Dr. Lee stated that the

2

results of these tests showed a left lower lobe nodularity. The tests also indicated a normal cardiomediastinal contour with no focal consolidation, pleural effusion or pneumothorax; the visualized
osseous structures were intact. Dr. Lee recommended a CT scan for further evaluation.
By decision dated June 6, 2013, OWCP denied appellant’s claim. It found that he failed to
submit sufficient medical evidence to support an asbestos-related condition arising in the
performance of duty.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of a disease or condition for which
compensation is claimed; (2) a factual statement identifying the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The medical opinion must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.3
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.5 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
Appellant alleged that he was exposed to asbestos in the building where he worked. In
January 2013 his work site began abating floors containing asbestos. Appellant stated that air
quality testing obtained on his floor showed positive for asbestos exposure. The Board finds that
appellant, however, failed to submit sufficient medical evidence to establish a pulmonary
condition causally related to this exposure.

2

20 C.F.R. § 10.5(q).

3

Solomon Polen, 51 ECAB 341, 343-44 (2000).

4

See Joe T. Williams, 44 ECAB 518, 521 (1993).

5

Id.

3

Dr. Lee stated in his February 19, 2013 report that appellant had chronic coughing and a
history of asbestos exposure. He indicated that appellant underwent frontal and lateral chest
radiographic tests which revealed a left lower lobe nodularity. Dr. Lee scheduled him for CT scan
testing.
In a February 29, 2013 report, Dr. Sussman obtained a history that appellant had been
exposed to a significant amount of asbestos at his work site and was referred for a pulmonary
evaluation. He stated that on examination appellant had no symptoms of dyspnea on exertion,
cough, chest pain or unexplained weight loss. Dr. Sussman advised that his lungs were clear with
no wheezing or rales, no tactile fremitus or hyperresonance to percussion; chest x-ray tests showed
a poor inspiration with borderline heart size, with no pleural disease or evidence for interstitial
disease. He administered pulmonary function tests which revealed a mild reduction in the vital
capacity and ERV with the remainder of the lung volumes and the diffusing capacity normal.
Dr. Sussman asserted that appellant was exposed to a very low level of asbestos for many years,
with more significant asbestos exposure over the past year, and showed no evidence of any
pulmonary pathology. He stated that there was a minimal chance that appellant would eventually
experience asbestos-related problems such as asbestosis, bronchogenic carcinoma and
mesothelioma. Dr. Sussman noted that he had a small nodule in the left lower lobe and
recommended that he undergo a CT scan of the chest.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of a physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.6 The reports from Drs. Sussman and Lee are not sufficient to
meet appellant’s burden of proof. Neither physician offered an opinion supporting a diagnosis of
asbestosis or other pulmonary condition causally related to the accepted employment exposure to
asbestos. Both Drs. Lee and Sussman noted a small nodule on appellant’s left lobe. The
physicians did not address how appellant’s exposure to asbestos caused or contributed to this
condition. Appellant failed to provide a rationalized, probative medical opinion relating his
current condition to factors of his employment.
OWCP advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. It properly denied appellant’s claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an asbestos-related condition due to exposure to asbestos in the performance of his
federal job duties.

6

See Anna C. Leanza, 48 ECAB 115 (1996).

4

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 26, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fairhope, AL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2209
Issued: July 20, 2010

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 2, 2009 appellant filed a timely appeal from the August 5, 2009 merit
decision of the Office of Workers’ Compensation Programs terminating his compensation.
Pursuant to 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 the Office properly terminated appellant’s compensation effective
December 30, 2008 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
The Office accepted that on May 8, 2006 appellant, then a 40-year-old city letter carrier,
sustained a lumbar sprain due to lifting mail at work. Appellant continued working in a limitedduty position on a full-time basis. He stopped work on March 23, 2007 and did not return. On

January 17, 2008 the Office accepted that appellant sustained lumbar disc displacement without
myelopathy. It paid him wage-loss compensation for periods of disability.1
On October 23, 2008 the employing establishment offered appellant a position as a
modified city carrier on a full-time basis in Mobile, AL. The job included such duties as casing
mail for an assigned delivery route, scanning mail and delivery confirmations and answering the
telephone. The physical requirements of the modified job consisted of intermittent lifting,
pushing and pulling no more than 10 pounds for a total of eight hours per day; intermittent
walking, standing and sitting for three hours (for each task) during an eight-hour workday;
intermittent reaching above the shoulder, squatting and kneeling for three hours (for each task)
during an eight-hour workday; and constant and frequent use of the fingers and hands for
grasping. To accommodate appellant’s standing restriction, a stool would be provided and, in
order to accommodate his lifting restriction, assistance would be provided for items weighing
more than 10 pounds. On October 29, 2008 appellant rejected the modified city carrier position
job offer.
On August 25, 2008 Dr. Raymond Fletcher, a Board-certified orthopedic surgeon who
served as an Office referral physician, discussed appellant’s medical condition, including his
May 6, 2006 employment injury and the treatment he received since that time. He advised that
magnetic resonance imaging (MRI) scan testing of appellant’s lumbar spine from
December 2006 and March 25, 2008 showed a right foraminal disc protrusion at L5-S1.
Dr. Fletcher noted that physical examination revealed significant functional lumbar impairment
with muscle spasm and tight hamstring muscles. He stated that appellant had permanent
aggravation of lumbar spondylosis with residual impairment and that his work injury contributed
to his medical condition. The treatment recommendations included resuming current pain
management, epidural steroid injections and physical therapy. Appellant was unable to work full
duty as a city letter carrier at the employing establishment. Dr. Fletcher advised, however, that
appellant could work eight hours a day at the sedentary work level. His work restrictions
included sitting for up to three hours per day, walking up to three hours, standing for three hours,
reaching for three hours, reaching above the shoulders for three hours, twisting for three hours,
bending/stooping for two hours, no operating a motor vehicle at work or climbing, operating a
motor vehicle to and from work for two hours, pushing up to 10 pounds for three hours, lifting
up to 10 pounds for three hours, lifting up to 10 pounds for three hours, squatting with up to 10
pounds for three hours and kneeling with up to 10 pounds for three hours.2
In an October 16, 2008 report, Dr. Robert L. White, an attending neurosurgeon, stated
that appellant’s chief complaint was back and right leg pain. He noted that there were no
surgical plans and advised that conservative management options were explained to appellant.

1

Appellant participated in Office-sponsored vocational rehabilitation efforts without success.

2

Dr. Fletcher also completed a work restriction form which delineated the same work restrictions.

2

Dr. White stated that appellant had been treated with conservative methods such as physical
therapy and spinal epidural injections.3
In a November 19, 2008 letter, the Office advised appellant of its determination that the
position offered by the employer was suitable. On November 17, 2008 the employing
establishment confirmed that the position was still available. The Office informed appellant that
his compensation would be terminated if he did not accept the position or provide good cause for
not doing so within 30 days of the date of the letter. Appellant did not respond to the Office’s
November 19, 2008 letter.
In a December 30, 2008 decision, the Office terminated appellant’s compensation
effective that day. It found that he refused an offer of suitable work. The Office noted that the
opinion of Dr. Fletcher established that appellant could perform the offered position and he did
not provide good cause for not accepting suitable work.
In a January 20, 2009 report, Dr. Julia M. Dannelley, an attending Board-certified family
practitioner, stated that she and her colleagues had followed appellant for a back injury related to
his work. It had come to her attention that appellant had been offered a job “not terribly
dissimilar from previous duties.” Dr. Dannelley stated that accepting this job was inadvisable
from physical and psychological standpoints. She advised that appellant suffered chronic pain
and that it was doubtful he could make it through the day without inordinate suffering.
Dr. Dannelley stated:
“The injury that [appellant] has suffered has also led to significant deterioration in
a chronic psychiatric illness he suffers from. This malady has become of serious
intensity in the last few months. [Appellant] has documented post-traumatic
stress disorder and is treated for this through the [Veterans Administration]
mental health service. He even had an inpatient psychiatric stay several months
ago when he decompensated under the emotional and mental stress of dealing
with financial difficulties and aggravation associated with his injury. I would
strongly recommend against [appellant] returning to work at the employing
establishment. I fear that he would not be able to keep up with the pace because
of his physical and emotional problems. I am most certain that he would
decompensate. I am unsure what form this decompensation would take but I am
sure it would be to no one’s benefit. Rather than deal with this very likely
outcome, I would recommend [appellant] be retired now that he has been awarded
his social security benefits.”
In a May 20, 2009 report, Dr. Daniel L. Koch, an attending clinical psychologist,
described appellant’s factual and medical history and diagnosed post-traumatic stress disorder,
skin disorder and pain disorder, including chronic back, right hip and leg pain. He noted that the
results of diagnostic testing revealed that appellant had mild neuropsychological deficits.
3

In a December 2, 2008 report, Dr. Edward M. Schnitzer, an attending Board-certified internist, stated that
appellant reported that he had persistent pain and aching in his low back and right leg. He indicated that on
examination there was no paraspinal muscle spasm and that strength in the lower extremities was normal.
Dr. Schnitzer stated that appellant would “remain out of work until next visit.”

3

Appellant suffered from post-traumatic stress disorder resulting from a “near death” motor
vehicle accident in 1986, took antidepressants and attended weekly group therapy to help with
symptoms. He reported that he was in constant pain from his work injury and unable to stand for
long periods. Dr. Koch stated:
“The patient is advised to continue his antidepressant medications. He will be
referred to an orthopedic surgeon for a current assessment of his back condition.
If a second opinion is no surgical intervention then it is possible that the patient
will be disabled from his postal job unless an appropriate accommodation can be
made in the workplace. Referral to a pain management specialist will be
necessary. If no surgical relief is possible, the patient will be … permanently
disabled.”
Appellant requested a hearing before an Office hearing representative that was held on
May 13, 2009. He provided a history of his injury, a description of his regular job duties and
reasons why he could not do the limited-duty job provided to him. Appellant asserted that he
would not be able to stand, bend or lift. He also discussed a history of post-traumatic stress
disorder from his military career, which had been present prior to the time he sustained his
May 6, 2006 work injury.
In an August 5, 2009 decision, the Office hearing representative affirmed the
December 30, 2008 decision. She found that the reports of Dr. Dannelley and Dr. Koch did not
establish that the position offered to appellant was unsuitable.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”4 However, to justify such termination, the Office
must show that the work offered was suitable.5 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.6
ANALYSIS
The Office accepted that on May 8, 2006 appellant sustained a lumbar sprain and lumbar
disc displacement without myelopathy due to lifting mail at work. Appellant stopped work on
March 23, 2007 and did not return. The Office terminated his monetary compensation effective
December 30, 2008 on the grounds that he refused an offer of suitable work.
The evidence of record establishes that appellant was capable of performing the modified
city carrier position offered by the employing establishment in October 2008 and determined to
4

5 U.S.C. § 8106(c)(2).

5

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

6

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

4

be suitable by the Office in November 2008. The physical requirements of the modified job
consisted of intermittent lifting, pushing and pulling no more than 10 pounds for a total of eight
hours per day; intermittent walking, standing and sitting for three hours (for each task) during an
eight-hour workday; intermittent reaching above the shoulder, squatting and kneeling for three
hours (for each task) during an eight-hour workday; and constant and frequent use of the fingers
and hands for grasping. To accommodate appellant’s standing restriction, a stool would be
provided and, in order to accommodate his lifting restriction, assistance would be provided for
items weighing more than 10 pounds.7
In determining that appellant was physically capable of performing the modified city
carrier position, the Office properly relied on the opinion of Dr. Fletcher, a Board-certified
orthopedic surgeon who served as an Office referral physician. On August 25, 2008 Dr. Fletcher
noted that physical examination revealed significant functional lumbar impairment with muscle
spasm and tight hamstring muscles. The treatment recommendations included resuming current
pain management, epidural steroid injections and physical therapy. Dr. Fletcher found that
appellant was unable to work full duty as a regular city letter carrier, but could work eight hours
a day at the sedentary work level. His work restrictions included sitting for up to three hours per
day, walking up to three hours, standing for three hours, reaching for three hours, reaching above
the shoulders for three hours, twisting for three hours, bending/stooping for two hours, pushing
up to 10 pounds for three hours, lifting up to 10 pounds for three hours, lifting up to 10 pounds
for three hours, squatting with up to 10 pounds for three hours and kneeling with up to 10 pounds
for three hours.
The Board notes that the work restrictions provided by Dr. Fletcher allowed appellant to
perform the modified city carrier position offered by the employing establishment. The Board
finds that, the Office established that the modified city carrier position offered by the employing
establishment was suitable. As noted, once the Office has established that a particular position is
suitable, an employee who refuses or neglects to work after suitable work has been offered to
him has the burden of showing that such refusal to work was justified. The Board has carefully
reviewed the evidence and argument submitted by appellant in support of his refusal of the
modified city carrier position and finds that it is not sufficient to justify his refusal of the
position.
In a December 2, 2008 report, Dr. Schnitzer, an attending Board-certified internist, stated
that appellant reported persistent pain and aching in his low back and right leg. He stated that
appellant would “remain out of work until next visit.” This report is of limited probative value
on the issue of suitable work as Dr. Schnitzer did not provide any explanation for his conclusion
that appellant could not work. He only provided limited findings on examination and did not
address the modified-duty job offer. Dr. Schnitzer indicated that on examination there was no
paraspinal muscle spasm and that strength in the lower extremities was normal.
7

There is no indication that appellant was not vocationally capable of performing the position. The record does
not reveal that the modified city carrier position was temporary or seasonal in nature. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.4b
(July 1997).

5

In a January 20, 2009 report, Dr. Dannelley, an attending Board-certified family
practitioner, stated that it had come to her attention that appellant had been offered a job “not
terribly dissimilar from previous duties.” She noted that accepting this job was inadvisable from
physical and psychological standpoints because he suffered chronic pain and it was doubtful that
he could make it through the day without inordinate suffering. She asserted that appellant’s
emotional condition might cause problems in the future. Dr. Dannelley did not present any
objective findings to support her opinion on disability. Moreover, her opinion is speculative on
appellant’s capacity for work. Dr. Dannelley did not clearly state that she had reviewed the duties
of the job offer made to appellant. Her opinion is of diminished probative view. It is also well
established that the possibility of future injury constitutes no basis for the payment of
compensation.8
In a May 20, 2009 report, Dr. Koch, an attending clinical psychologist, described
appellant’s medical history and diagnosed post-traumatic stress disorder, skin disorder and pain
disorder. He discussed the treatment for appellant’s emotional condition but did not provide any
indication that this condition prevented appellant from working as a modified city carrier.
Dr. Koch suggested that appellant might have an orthopedic disability in the future, but as a
clinical psychologist he would not be competent to provide an opinion on orthopedic condition.
As noted, the possibility of future injury or disability is not a basis for payment of compensation.
For these reasons, the Office properly terminated appellant compensation effective
December 30, 2008 on the grounds that he refused an offer of suitable work.9
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
December 30, 2008 on the grounds that he refused an offer of suitable work.

8

Gaeten F. Valenza, 39 ECAB 1349, 1356 (1988). Moreover, Dr. Dannelley did not provide any description of the
modified city carrier position or explain why appellant could not perform the job.
9

The Board notes that the Office complied with its procedural requirements prior to terminating appellant’s
compensation, including providing him with an opportunity to accept the modified city clerk position. Because
appellant did not respond to the Office’s November 18, 2008 suitability letter or otherwise provide reasons for
refusing the position, it was not necessary to provide him with another opportunity to accept the position; see
generally Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 20, 2010
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-962
Issued: December 28, 2009

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 March 3, 2009 appellant filed a timely appeal from a February 5, 2009 decision of the
Office of Workers’ Compensation Programs denying psychotherapy and wage-loss
compensation. Pursuant to 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 appellant has established that she was totally disabled from
January 3 to February 4, 2008 as a result of her accepted work injury; and (2) whether the Office
abused its discretion by denying her request for treatment with a psychotherapist.
FACTUAL HISTORY
On September 7, 2006 appellant, then a 30-year-old rural carrier, filed a traumatic injury
claim alleging that on August 28, 2006 she developed right shoulder pain as a result of casing
and delivering mail to multiple routes. The Office accepted her claim for right shoulder strain
and impingement with tenosynovitis. Appellant worked modified duty until she underwent right
shoulder surgery on May 8, 2007. On September 18, 2007 Dr. Daryl G. Dykes, a Board-certified

orthopedic surgeon, released her to return to full duty with no restrictions. The Office paid
wage-loss compensation.
On February 2, 2008 appellant filed a Form CA-7 claim for compensation for the period
January 3 to February 4, 2008. Theron M. Covin, Ed.D., a licensed professional counselor,
submitted a January 21, 2008 report. He reviewed the history of injury, noting that appellant’s
family physician took her off work due to job-related stress. When appellant was released to
return to work, the employing establishment gave her a letter stating she had to undergo a mental
health evaluation prior to returning to work. Mr. Covin diagnosed major depression and
generalized anxiety disorder. He opined that chronic pain from appellant’s right shoulder caused
the major depression and anxiety and recommended that she return to work with physical
restrictions. In a January 30, 2008 attending physician’s report, Mr. Covin stated that appellant
was treated on January 21, 29 and 30, 2008 and was totally disabled since January 3, 2008. He
opined that her major depression and generalized anxiety disorder was the direct result of chronic
pain from the shoulder injury. Mr. Covin recommended ongoing psychotherapy.
In a February 7, 2008 letter, the employing establishment controverted the claim. It
noted that appellant returned to regular duty for her shoulder sprain on September 5, 2007.
In a March 3, 2008 letter, the Office advised appellant that additional medical evidence
was needed to establish her disability. Appellant was referred for a fitness-for-duty examination
after a January 3, 2008 incident at work and her family physician held her off work due to job
stress. The Office noted that Mr. Covin reported that she had chronic pain but could return to
light duty; however, the medical evidence of record established that she had pain but was
physically able to resume regular duties. There was no evidence that appellant’s disability
beginning January 3, 2006 was a recurrence of her right shoulder condition. It advised that she
could file a new claim for the January 3, 2008 incident.
In a March 11, 2008 letter, appellant addressed the circumstances surrounding the
January 3, 2008 incident in which she alleged a personality conflict with her postmaster and a
coworker.
She contended that the employing establishment denied her request for
accommodation on February 28, 2008.
On April 24, 2008 the Office approved appellant’s request for treatment with Mr. Covin.
In additional reports, Mr. Covin advised that appellant was totally disabled from
February 25 through March 10, 2008 and was able to return to work with physical and
psychological restrictions on March 11, 2008. Appellant could resume full-duty work on
March 31, 2008.
In a May 20, 2008 letter, the Office noted that appellant had not provided an explanation
for traveling 300 miles round trip for treatment by Mr. Covin. It also inquired why she
scheduled her appointments on her scheduled workday. The Office stated that the distance to
Mr. Covin’s office was not a reasonable distance to seek treatment as he was not a physician and
could not provide any restrictions in her case. Appellant was also advised that her CA-7 forms
were not completed correctly. She was provided 30 days to submit medical evidence from a

2

physician addressing why she should continue under the care of Mr. Covin. Appellant did not
respond.
In a July 21, 2008 decision, the Office denied further treatment by Mr. Covin or travel to
his office.
It also denied appellant’s claim for wage loss from January 3 through
February 4, 2008.
On July 24, 2008 appellant’s attorney requested a telephonic hearing, which was held on
November 13, 2008. Appellant testified that she was seeking help from the Employee
Assistance Program when her supervisor requested a fitness-for-duty examination. She refused
and was subsequently taken off work by her physician until January 14, 2008. When the
employing establishment advised appellant that she needed medical clearance in order to return
to work, she sought counseling with Mr. Covin as she was unable to locate anyone in her area
within the time frame provided. Appellant stated that she was not interested in mileage
reimbursement but wanted to be reimbursed for lost time from work.
In a December 11, 2008 report, Dr. Gary L. Howard, a Board-certified internist, stated
that appellant had anxiety and depression which necessitated psychiatric treatment after she
sustained a work-related right shoulder injury and underwent surgery. He indicated that
appellant was out of work for approximately three months as a result of her mental condition.
Dr. Howard indicated that she had significant improvement and had been granted permission to
return to work without restrictions. He noted her shoulder was better but still had “some
problems.”
By decision dated February 5, 2009, the Office hearing representative affirmed the
July 21, 2008 decision.1
LEGAL PRECEDENT -- ISSUE 1
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled for work as a result of the accepted employment injury.2 As used in the Federal
Employees’ Compensation Act, the term “disability” means incapacity, because of an
employment injury, to earn the wages that the employee was receiving at the time of injury.3
Disability is thus, not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages.4 Whether a particular injury causes an employee to be disabled for
employment, and the duration of that disability, are medical issues, which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.5 The Board will not
require the Office to pay compensation in the absence of medical evidence directly addressing
1

On January 14, 2009 the Office denied appellant’s claim for a schedule award. Appellant did not appeal this
decision to the Board.
2

William A. Archer, 55 ECAB 674 (2004).

3

Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.5(f).

4

See Fred Foster, 1 ECAB 21 (1947).

5

Fereidoon Kharabi, 52 ECAB 291 (2001); see also Edward H. Horton, 41 ECAB 301 (1989).

3

the particular period of disability for which compensation is sought. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.6
Where an employee claims that, a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury. 7 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 casual relationship.8 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence. 9
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the diagnosed condition
and the specific employment factors identified by the claimant.10 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 causal relationship.11
ANALYSIS -- ISSUE 1
Appellant has an accepted injury for right shoulder strain impingement and tenosynovitis.
She claimed total disability from January 3 through February 4, 2008. Appellant has the burden
to establish through probative medical evidence that she was disabled causally related to her
accepted injury.
In support of her claim, appellant submitted reports from Mr. Covin, a licensed
counselor, who stated that she had major depression and a generalized anxiety disorder for which
she was disabled during the claimed period. Mr. Covin opined that chronic pain from her right
shoulder condition caused major depression and anxiety. However, his reports are of no
probative medical value as he is not a “physician” as defined under the Act. 12 The term
physician includes a clinical psychologist; however, the evidence does not establish that
Mr. Covin is a clinical psychologist. Therefore, his opinion regarding the cause of appellant’s
condition or disability is of no probative medical value.
6

Sandra D. Pruitt, 57 ECAB 126 (2005); William A. Archer, 55 ECAB 674 (2004).

7

Jaja K. Asaramo, 55 ECAB 200 (2004).

8

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

9

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Mary J. Summers, 55 ECAB 730 (2004).

10

Phillip L. Barnes 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

11

V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007); Ernest St. Pierre, 51 ECAB 623 (2000).

12

5 U.S.C. § 8101(2). Section 8101(2) defines the term “physician” to include “surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.” See Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical
opinion, in general, can only be given by a qualified physician).

4

In a December 11, 2008 report, Dr. Howard stated that appellant required psychiatric
treatment for anxiety and depression after her shoulder injury and surgery and that she was out of
work for approximately three months. He reiterated that appellant’s shoulder still had “some
problems,” but offered no explanation of the relationship of her emotional condition to the
accepted shoulder conditions and did not specifically address whether the shoulder “problems”
were work related or disabling.13 Dr. Howard’s report does not establish compensable disability
during the period claimed or establish that her emotional condition is due to the accepted
shoulder injury.
The remaining medical evidence of record does not address whether appellant had
employment-related disability during the period claimed. Without reasoned medical evidence
supporting that she was disabled, she has not met her burden of proof to establish wage loss from
January 3 through February 4, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of the Federal Employees’ Compensation Act14 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.15
In interpreting section 8103 of the Act, the Board has recognized that the Office has
broad discretion in approving services provided under the Act.16 The Office has the general
objective of ensuring that an employee recovers from her injury to the fullest extent possible in
the shortest amount of time. It has broad administrative discretion in choosing means to achieve
this goal. The only limitation on the Office’s authority is that of reasonableness.17 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from
established facts.18 It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.19

13

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (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).
14

5 U.S.C. §§ 8101-8193.

15

Id. at § 8103; see also L.D., 59 ECAB ___ (Docket No. 08-966, issued July 17, 2008).

16

See P.C., 59 ECAB ___ (Docket No. 07-1691, issued June 20, 2008).

17

A.O., 60 ECAB ___ (Docket No. 08-580, issued January 28, 2009); L.W., 59 ECAB ___ (Docket No. 07-1346,
issued April 23, 2008); Dr. Mira R. Adams, 48 ECAB 504 (1997).
18

L.W., id.

19

J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007).

5

In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury
by submitting rationalized medical evidence that supports such a connection and demonstrates
that the treatment is necessary and reasonable. 20 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the
expenditure is incurred for treatment of the effects of an employment-related injury or
condition.21 Proof of causal relation must include rationalized medical evidence.22
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained employment-related right shoulder strain,
right shoulder impingement and tenosynovitis. It initially paid for treatment by Mr. Covin but
denied authorization for further treatment when it became aware that he was not treating
appellant for an accepted condition.23 Appellant has the burden of proof to establish that her
treatment was for the effects of an employment-related condition.24
As noted, the Office is obligated to authorize and pay for treatments it reasonably finds
likely to cure, give relief or aid in lessening the period of disability associated with an accepted
employment-related condition.25 It is not obligated to compensate appellant for treatment of
nonaccepted conditions.26 Appellant must first establish that psychotherapy is for treatment of a
condition that is causally related to her employment injury and that it is medically warranted.27
As noted, Mr. Covin is not a physician under the Act. His opinion on causal relation and
whether appellant’s psychotherapy is necessary due to the accepted injury is of no probative
value. Dr. Howard’s report does not provide a specific opinion on whether such treatment was
necessary to treat her accepted shoulder condition.
The Office provided appellant the opportunity to submit evidence to support her need for
psychotherapy. However, the evidence appellant provided is insufficient. The Office properly
denied authorization for continued treatment with Mr. Covin.
20

R.L., 60 ECAB ___ (Docket No. 08-855, issued October 6, 2008).

21

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

22

Id.; Bertha L. Arnold, 38 ECAB 282 (1986).

23

The fact that the Office authorized and paid for some medical treatment does not establish that the condition for
which appellant received treatment was employment related. See Gary L. Whitmore, 43 ECAB 441 (1992);
James F. Aue, 25 ECAB 151 (1974). See also Sophia Maxim (Edward Gerard Maxim) 10 ECAB 61 (1958)
(gratuitous authorization of medical services for a condition unrelated to the employment do not create a liability on
the Office to furnish further benefits).
24

During the November 13, 2008 telephonic hearing, appellant advised she was not seeking reimbursement of
travel expenses.
25

See supra note 15.

26

Cathy B. Millin, 51 ECAB 331, 333 (2000).

27

Id.

6

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
disability for the period January 3 to February 4, 2008 was as a result of her accepted work
injury. The Board further finds that the Office properly denied authorization for her continued
treatment with Mr. Covin.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2009 is affirmed.
Issued: December 28, 2009
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

7