United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 18-1715
Issued: May 24, 2019

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 September 11, 2018 appellant filed a timely appeal from an August 14, 2018 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty on June 25, 2018.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 14, 2018 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.

FACTUAL HISTORY
On June 27, 2018 appellant, then a 38-year old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on June 25, 2018 she experienced an anxiety attack while
delivering mail to a liquor store while in the performance of duty. She explained that a person put
his hand on her forehead like he had a gun. J.V., a supervisor and manager of customer service at
the employing establishment, controverted the claim and indicated on the claim form that after
viewing video from store surveillance, the story does not match.
In support of her claim appellant provided an undated statement. She explained that she
was delivering mail to a liquor store and “a man put his hand on my forehead like he had a gun
and said pow like he shot me.” Appellant alleged that when she asked him why he did that, he
replied, “I don’t care, I don’t believe in God.” She noted that she ran inside the liquor store and
asked if they saw what happened. Appellant indicated that the “store man said he saw what
happened and told me the man was acting a fool before I came in.” She alleged that she
immediately called her manager. Appellant confirmed that the store had cameras and that her
manager and coworker arrived to view the video and to see the man who confronted her.
In a June 26, 2018 letter, N.S., an Employee Assistance Program (EAP) consultant, noted
that appellant experienced a traumatic incident at work on Monday, June 25, 2018. She explained
that they met to discuss appellant’s needs and recommended that she not go on the street for three
days, or until she was able to do so.
In a July 3, 2018 letter, P.R., a health and resource management specialist, controverted
the claim. She noted that Supervisor J.V. obtained video security footage of the incident from the
liquor store which revealed appellant having a dialogue with a man upon entering the business.
However, it did not show any sort of actions as described.
In a development letter dated July 10, 2018, OWCP informed appellant of the deficiencies
in her claim and explained the type of factual and medical evidence needed to establish her claim.
It asked appellant to complete a questionnaire describing the events surrounding her injury and the
nature of her relationship, if any, with the assailant. OWCP afforded her 30 days to submit the
necessary evidence. Appellant did not respond to the questionnaire.
OWCP received a June 29, 2018 return to work report from Dr. Geetha Ganesan, a Boardcertified internist. Dr. Ganasan diagnosed anxiety and panic attacks and indicated that appellant
experienced a work-related injury on June 25, 2018. She released appellant to work without
restrictions on July 9, 2018.
In a letter dated July 11, 2018, J.V. controverted the claim. He explained that the video
surveillance of the alleged incident showed that what appellant claimed had not happened.
In a July 20, 2018 Statement of Hospitalization/Treatment and Return to Work note
Dr. Rina A. Patel, a Board-certified psychiatrist, indicated that appellant was incapacitated for the

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period July 5 to 18, 2018. She recommended that appellant work inside for her first week of work
and then return to her route.
In a July 27, 2018 report Mary Pellman, a licensed professional counselor (LPC), noted
that appellant received treatment for the period July 20 to August 15, 2018. OWCP also received
a duplicate copy of the June 26, 2018 letter from N.S., the EAP consultant.
By decision dated August 14, 2018, OWCP denied appellant’s claim. It found that she had
not met her burden of proof to establish an injury in the performance of duty. OWCP explained
that the evidence of record did not establish that the injury and/or medical condition arose during
the course of employment and within the scope of compensable work factors. It advised that the
reason for this finding was that appellant had not responded to the questionnaire and it was unclear
if there was a personal relationship away from work between appellant and the alleged assailant.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of duty,
appellant must submit the following: (1) medical evidence establishing that she has an emotional
or stress-related disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her stressrelated condition.3 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor.4 When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.7
When an employee experiences emotional stress in carrying out his or her employment duties and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from her emotional reaction to a
special assignment or other requirement imposed by the employing establishment or by the nature

3

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

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

6

28 ECAB 125 (1976).

7

See Robert W. Johns, 51 ECAB 137 (1999).

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of the work.8 Allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim.9
Assaults arise out of the employment either if the risk of assault is increased because of the
nature or setting of the work or if the reason for the assault was a quarrel having its origin in the
work. Assaults for private reasons do not arise out of the employment unless, by facilitating an
assault that would not otherwise be made, the employment becomes a contributing factor.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on June 25, 2018.
Appellant’s claim pertains to an alleged event that occurred on June 25, 2018, while she
was delivering mail. She has claimed that a person put his hand on her forehead like he had a gun
and said “pow.” OWCP accepted that appellant had a dialogue with the alleged assailant on
June 25, 2018, outside the liquor store, but that she had not established that the incident of June 25,
2018, occurred in the performance of duty. J.V., appellant’s supervisor, controverted the claim
and explained that the video of the incident showed that what appellant claimed had not happened.
In a July 10, 2018 development letter, OWCP requested further information regarding the
incident and the nature of appellant’s relationship with the assailant. However, appellant did not
respond.11 Her failure to respond to the development letter prevented OWCP from determining
whether the incident arose from her employment or for a private reason.
For the foregoing reasons, the Board finds that appellant has not met her burden of proof
to establish that the claimed incident occurred as alleged. Therefore, appellant has not met her
burden of proof to establish that she sustained an emotional condition in the performance of duty.
As she did not establish a compensable employment factor, the Board need not consider the
medical evidence of record.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this decision regarding the merits of appellant’s claim, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

8

Lillian Cutler, supra note 6.

9

J.F., 59 ECAB 331 (2008).

10

See R.A., 59 ECAB 581 (2008).

11

See David S. Lee, 56 ECAB 602 (2005).

12

See Katherine A. Berg, 54 ECAB 262 (2002).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on June 25, 2018.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 24, 2019
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
__________________________________________

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

Docket No. 07-1547
Issued: December 19, 2007

Case Submitted on the Record

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

JURISDICTION
On May 21, 2007 appellant filed a timely appeal from the December 8, 2006 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative, who
affirmed a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the schedule award.
ISSUE
The issue is whether appellant has more than a 13 percent permanent impairment of his
left upper extremity.
FACTUAL HISTORY
On June 18, 2004 appellant, then a 42-year-old building equipment mechanic sustained
an injury in the performance of duty while lifting a motor between floors because the elevator
was out of order. The Office accepted his claim for left shoulder bursitis and approved surgery
for chronic left shoulder impingement. On March 14, 2005 appellant underwent arthroscopic
subacromial decompression, partial distal clavicle excision and debridement of a partial articular

rotator cuff tendon tear. The attending surgeon, Dr. Michael F. Pizzillo, reported that appellant
reached maximum medical improvement by July 13, 2005.
Appellant requested a schedule award and submitted the December 14, 2005 report of
Dr. David Weiss, an osteopath, who found a 10 percent impairment due to resection arthroplasty,
a four percent impairment due to weakness of the supraspinatus during manual muscle testing
and a three percent pain-related impairment. Dr. Weiss concluded that appellant had a 17
percent impairment of his left upper extremity.1
On May 4, 2006 the Office medical adviser reviewed Dr. Weiss’ calculations and
determined that appellant had a 13 percent impairment of his left upper extremity. The medical
adviser agreed that appellant had a 10 percent impairment due to a partial resection of the distal
clavicle. He also agreed that appellant had a three percent pain-related impairment, but the
medical adviser noted that appellant’s status appeared to have improved since Dr. Weiss’
examination. Range of motion became “full and symmetric” by March 21, 2006, according to
Dr. Pizzillo and regular physical therapy was expected to have increased appellant’s strength.
Therefore, the medical adviser rated no impairment due to loss of strength.
On May 18, 2006 the Office issued a schedule award for a 13 percent permanent
impairment of the left upper extremity. In a decision dated December 8, 2006, an Office hearing
representative affirmed.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.3
ANALYSIS
Under Table 16-27, page 506 of the A.M.A., Guides, resection arthroplasty of the distal
clavicle represents a 10 percent impairment of the upper extremity. This may be combined with
motion impairment.4
Although Dr. Pizzillo, the attending surgeon, reported “full and symmetric” range of
motion, a proper evaluation under the A.M.A., Guides requires actual goniometer readings or
1

Dr. Weiss included no impairment due to loss of motion but reported 170 degrees forward elevation, 170
degrees abduction, 75 degrees adduction, 60 degrees internal rotation and 80 degrees external rotation.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001).
4

A.M.A., Guides 505.

2

linear measurements.5 Dr. Weiss provided specific measurements in five of the six planes of
shoulder motion,6 which permits an application of tables in the A.M.A., Guides.
Under Table 16-40, page 476, 170 degrees flexion represents a one percent impairment of
the upper extremity. Under Table 16-43, page 477, 170 degrees abduction and 75 degrees
adduction represent no impairment. Under Table 16-46, page 479, 80 degrees external rotation
represents no impairment, but 60 degrees internal rotation represents a two percent impairment.
The impairment values contributed by each unit of motion are added to determine the
impairment of the upper extremity due to abnormal shoulder motion.7 Therefore, appellant’s
motion impairment is three percent. His 10 percent impairment due to resection arthroplasty
combines with his three percent impairment due to abnormal shoulder motion for a 13 percent
total impairment of the left upper extremity,8 which is the percentage the Office awarded.
Dr. Weiss included a four percent impairment due to weakness of the supraspinatus
musculature on manual muscle testing, but the A.M.A., Guides does not assign a large role to
such measurements because they are functional tests influenced by subjective factors that are
difficult to control, and the A.M.A., Guides is based for the most part on anatomic impairment.9
Accordingly, loss of strength may be rated separately in rare cases, if the examiner believes the
individual’s loss of strength represents an impairing factor that has not been considered
adequately by other methods in the A.M.A., Guides. Even then, impairment due to loss of
strength could be combined with other impairments only if it is based on unrelated etiologic or
pathomechanical causes. Otherwise, impairment ratings based on objective anatomic findings
take precedence. Moreover, decreased strength cannot be rated in the presence of decreased
motion, painful conditions, deformities or absence of parts that prevent effective application of
maximal force in the region being evaluated.10
Dr. Weiss did not justify an impairment rating based on manual muscle testing. He did
not explain how appellant’s impairment was the rare case and he did not explain how appellant’s
loss of strength was based on etiologic or pathomechanical causes that were unrelated to other
impairments. To support such a rating, Dr. Weiss would also have to show that the presence of
decreased motion and the excision of the distal clavicle did not prevent the effective application
of maximal force in the shoulder.
Dr. Weiss also did not justify a pain-related impairment. He included a three percent
pain-related impairment based on Chapter 18 of the A.M.A., Guides. The A.M.A., Guides warns
that examiners should not use Chapter 18 to rate pain-related impairment for any condition that
can be adequately rated on the basis of the body and organ impairment rating systems given in
5

Id. at 451, 453.

6

He made no mention of backward extension.

7

A.M.A., Guides 479.

8

Id. at 604 (Combined Values Chart).

9

Id. at 507.

10

Id. at 508.

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other chapters.11 Moreover, as the A.M.A., Guides explains: “The impairment ratings in the
body organ system chapters make allowance for any accompanying pain.”12 So the presence of
pain alone does not justify a pain-related impairment. Dr. Weiss did not adequately explain why
appellant’s condition could not be rated in other chapters of the A.M.A., Guides or how his
condition falls within one of the several situations identified under Chapter 18.3a.13
Dr. Weiss’ report supports no more than a 13 percent permanent impairment of the left
upper extremity, the percentage the Office awarded. On this basis, then, the Board will affirm
the hearing representative’s December 8, 2006 decision, as modified.
CONCLUSION
The Board finds that appellant has no more than a 13 percent permanent impairment of
his left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: December 19, 2007
Washington, DC

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

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

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

11

Id. at 571.

12

Id. at 20.

13

Id. at 570-71.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warwick, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1671
Issued: June 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On September 4, 2018 appellant, through counsel, filed a timely appeal from an August 14,
2018 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.

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.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective August 14, 2018, as she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On September 21, 2013 appellant, then a 59-year-old rural mail carrier, filed a traumatic
injury claim (Form CA-1) alleging that on September 18, 2013 she was involved in a motor vehicle
accident when another vehicle rear-ended her postal vehicle while in the performance of duty. She
stopped work on September 18, 2013 and has not returned. OWCP accepted the claim for lumbar
sprain, cervical sprain, and joint derangement of right shoulder. It paid appellant wage-loss
compensation on the supplemental rolls as of November 3, 2013 and she was placed on the
periodic rolls as of August 24, 2014.
On September 27, 2013 appellant began treatment with Dr. Vincent J. Gulfo, a Boardcertified physiatrist. In a March 4, 2014 report, Dr. Gulfo opined that her electrodiagnostic studies
were consistent with right cervical radiculopathy, most severely affecting the right C5 nerve root.
No evidence of myopathy or neuropathy were seen.
On July 9, 2014 appellant underwent an arthroscopic decompression of the right shoulder,
which was performed by Dr. Gabriel Dassa, a Board-certified orthopedic surgeon. In a
September 1, 2015 report, Dr. Dassa provided an impression of status post right shoulder
arthroscopic surgery and cervical spine disc bulging and disc herniation with radiculopathy. He
recommended continued physical therapy for the shoulder and pain management for the cervical
spine.
In February and December 2014, appellant underwent second opinion evaluations by
Dr. Harvey L. Seigel, a Board-certified orthopedic surgeon. In his December 1, 2014 report,
Dr. Seigel indicated that she had reached maximum medical improvement (MMI). He opined that
appellant no longer had disabling residuals of the accepted conditions and that she could return to
her date-of-injury job on a full-duty basis.
A February 16, 2016 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
revealed mild multilevel disc degenerative and osteoarthritic changes and central disc protrusion
causing mild central canal stenosis at C4-5 and C6-7. A February 16, 2016 MRI scan of her lumbar
spine showed multilevel degenerative disc and facet joint changes with small disc bulges.
On February 23, 2016 OWCP found a conflict in medical opinion between Drs. Gulfo and
Dassa for the appellant and Dr. Seigel for the government regarding the status of her accepted
conditions. Appellant was referred along with a statement of accepted facts (SOAF) and the case
record to Dr. G.K. Bhanusali, a Board-certified orthopedic surgeon, for an impartial medical
evaluation. In a March 17, 2016 report, Dr. Bhanusali opined that she could return to work in a
full-time capacity with temporary restrictions on lifting weight, and overhead activities. He
recommended a functional capacity evaluation (FCE).

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In an April 29, 2016 report, Dr. Steven K. Jacobs, a neurosurgeon, diagnosed cervical disc
displacement, mid-cervical region, cervical radiculopathy, and cervicalgia. He opined that he did
not believe that appellant could return to her prior job as it required lifting 70 pounds or greater.
Dr. Jacobs referred her for an FCE.
The September 5, 2016 FCE indicated that appellant could work in a sedentary capacity if
she received continued physical therapy, a formal work-conditioning program, frequent micro
breaks while working, proper ergonomic set up, and job retraining.
In a December 14, 2016 report, Dr. Richard D. Semble, a Board-certified orthopedic
surgeon and OWCP second opinion physician, opined that, based on appellant’s current physical
examination, she had no residuals, disability, or impairment from the accepted employment injury.
He opined that she had reached MMI scan and was capable of returning to work full duty without
an FCE or work hardening program.
A December 27, 2016 MRI scan of appellant’s cervical spine revealed multilevel disc
degenerative and osteoarthritic changes and mild canal narrowing at C3-4 through C6-7. No disc
herniation was seen.
In a January 20, 2017 report, Dr. Jacobs recommended anterior cervical discectomy and
fusion surgery due to a herniated disc at C5-6 with mass effect on the spinal cord. However, on
June 14, 2017, he recommended against any type of surgical procedure and referred appellant to
pain management.
On August 15, 2017 OWCP found a conflict in medical opinion between Dr. Jacobs and
Dr. Semble regarding appellant’s diagnoses and whether she had continuing disability due to the
accepted employment injury. Appellant was referred, along with an updated SOAF, a list of
questions, and the medical record to Dr. C. Tobenna Okezie, a Board-certified orthopedic surgeon,
for an impartial medical evaluation.
In an August 30, 2017 report, Dr. Okezie reviewed the SOAF and appellant’s medical
record. Following her physical examination, he related that there was no objective evidence that
she was totally or permanently disabled due to the accepted conditions or due to a temporary
aggravation of her preexisting cervical and lumbar spondylosis. Dr. Okezie opined that appellant
reached MMI 18 months after the date of injury, but indicated that he would use December 14,
2016, the date she was evaluated by Dr. Semble, as the date of MMI. He indicated that there were
no clinically relevant MRI scan finding or objective findings from the 2014 imagining studies that
would suggest even a remote possibility of a permanent disability. Dr. Okezie explained that
appellant’s treating physicians utilized mildly positive age-related findings to support subjective
complaints. He further explained that their interpretations of the imaging studies exceeded those
of the official radiologic reports and that there was no anatomic rationale to support permanent
disability. Dr. Okezie opined that appellant was capable of medium level work, noting that the
FCE indicated that she could perform some work. In response to a question regarding additional
medical treatment required to treat her accepted employment conditions, he related that a work
hardening program was necessary to facilitate her return to work. Dr. Okezie found that
appellant’s lifting capacity was potentially the chief limitation as it was difficult to assess how
much any 63-year-old female could lift. He completed a Form OWCP-5c, in which he indicated

3

that she could work a medium strength position full time with six-hour limitation on reaching
above shoulder and lifting no more than 50 pounds occasionally.
In an October 23, 2017 letter, OWCP advised the employing establishment that the special
weight of the medical evidence rested with Dr. Okezie. It requested that appellant be offered a
permanent position within the work restrictions set forth in his report.
On November 16, 2017 the employing establishment offered appellant a permanent
position as a modified rural carrier performing intermittent standing, walking, simple grasping,
and fine manipulation as well as occasional bending and stooping for up to eight hours, lifting,
pushing, and pulling up to 20 pounds intermittently (50 pounds occasionally) for up to eight hours
per day, and reaching/reaching above shoulder intermittently for six hours per day with occasional
climbing while delivering mail. The duties of the position consisted of casing and delivering mail
in varying conditions. It also included processing second notices, customer service, and sales at
the retail window and/or lobby, assisting with customer service and express mail delivery, for
which appellant would receive appropriate training. The employing establishment advised that the
assignment would remain within the physical restrictions of Dr. Okezie.
A revised January 3, 2018 job offer included the start and end times of the work schedule.
The schedule indicated that appellant’s hours on Saturdays were 8:30 a.m. to 5:00 p.m. with a half
hour lunch. For Monday, Wednesday, Thursday, and Friday, appellant’s regular work hours were
8:30 a.m. to 6:00 p.m. with an hour and a half for lunch.
In a December 4, 2017 report, Dr. Aditya Patel, a Board-certified anesthesiologist, noted
the history of appellant’s September 18, 2013 employment injury, reviewed medical records, and
presented examination findings. He provided differential diagnoses of herniated cervical disc,
herniated lumbar disc, electromyograph (EMG) documented cervical radiculopathy and lumbar
radiculopathy, and internal derangement of the shoulder status postsurgery.
In a January 15, 2018 report, Dr. Sukdeb Datta, a Board-certified pain medicine specialist,
opined that the differential diagnoses identified were causally related to the September 18, 2013
employment injury. He noted that appellant did not want surgical intervention and opined that she
was at MMI from the pain management point of view.
On January 3, 2018 appellant refused the job offer. On January 19, 2018 she advised her
rehabilitation counselor that she was unable to physically perform the duties of the modified-job
offer. Appellant also indicated that she was thinking of retirement.
On January 19, 2018 the employing establishment confirmed that the offered position
remained available to appellant.
Diagnostic testing from January 26, 2018 was received along with additional reports from
appellant’s physicians. In a January 31, 2018 report, Dr. Yigal Sasan, a chiropractor, diagnosed
cervical, thoracic, and lumbar spondylosis which he opined was caused or aggravated by
appellant’s work-related motor vehicle accident. He indicated that she was totally disabled for the
period January 22 to February 22, 2018. In a January 31, 2018 note, Dr. Sasan advised that
appellant needed to attend chiropractic treatment three times a week for a month. He further
advised that she was unable to perform her job duties at that time.
4

On February 27, 2018 OWCP advised the employing establishment that the offered
January 3, 2018 modified rural carrier position was not considered suitable. It noted that
appellant’s schedule for Monday, Wednesday, Thursday, and Friday was in excess of eight hours
and that she was scheduled to have one and a half hours for lunch on those days. OWCP requested
that the employing establishment provide a written explanation for the extended lunch. No
response was received from the employing establishment.
In an April 2, 2018 letter, OWCP notified appellant that the offered position was suitable
and remained available to her. It provided her 30 days to accept the position or provide reasons
for her refusal. OWCP also informed appellant that an employee who refused an offer of suitable
work was not entitled to compensation.
In an April 6, 2018 letter, counsel indicated that appellant was physically and mentally
unable to accept the offered position.
On July 3, 2018 OWCP advised appellant that her reasons for refusing the position were
invalid and provided her 15 days to accept the position or have her entitlement to wage-loss
compensation and schedule award benefits terminated. No additional evidence or argument was
received.
By decision dated August 14, 2018, OWCP terminated appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective that date, as she had refused
an offer of suitable work.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.3 Section 8106(c)(2) of FECA provides that a partially
disabled employee who refuses or neglects to work after suitable work is offered to, procured by
or secured for the employee is not entitled to compensation.4 To justify termination of
compensation, it must show that the work offered was suitable and must inform appellant of the
consequences of refusal to accept such employment.5 Section 8106(c) will be narrowly construed
as it serves as a penalty provision, which may bar an employee’s entitlement to compensation
based on a refusal to accept a suitable offer of employment.6
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.7 Section
3

T.M., Docket No. 18-1368 (issued February 21, 2019).

4

5 U.S.C. § 8106(c)(2); see also M.J., Docket No. 18-0799 (issued December 3, 2018).

5

See T.M., supra note 3.

6

Id.

7

20 C.F.R. § 10.517(a).

5

10.516 of OWCP’s regulations provide that it will advise the employee that the work offered is
suitable and provide 30 days for the employee to accept the job or present any reasons to counter
OWCP’s finding of suitability.8 Thus, before terminating compensation, OWCP must review the
employee’s proffered reasons for refusing or neglecting to work.9 If the employee presents such
reasons and OWCP finds them unacceptable, it will offer the employee an additional 15 days to
accept the job without penalty.10
Once OWCP establishes that the work offered is suitable, the burden of proof shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.11 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.12 In a
suitable work determination, OWCP must consider preexisting and subsequently acquired medical
conditions in evaluating an employee’s work capacity.13 Its procedures state that acceptable
reasons for refusing an offered position include medical evidence of inability to do the work.14
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical examiner (IME) for the purpose of resolving the conflict,
the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.15 The IME’s report must actually fulfill the purpose
for which it was intended. It must resolve the conflict in medical opinion.16 OWCP should ensure
that the IME’s report is comprehensive, clear, and definite, and that it is based on current
information and supported by substantial medical reasoning, as well as a review of the case file.17
If the report is vague, speculative, incomplete, or not rationalized, it is OWCP’s responsibility to
secure a supplemental report from the IME to correct any defects.18

8

Id.

9

See Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

10

20 C.F.R. § 10.516; see Sandra K. Cummings, 54 ECAB 493 (2003).

11

Supra note 7.

12

Gayle Harris, 52 ECAB 319 (2001).

13

P.S., Docket No. 18-1789 (issued April 11, 2019).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(4)
(June 2013).
15

J.T., Docket No. 18-0503 (issued October 16, 2018).

16

Supra note 14 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11d(2)
(September 2010).
17

Id.

18

Id.

6

ANALYSIS
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective August 14, 2018, on the basis that she had refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.19 OWCP properly determined that a conflict arose between Dr. Jacobs and
Dr. Semble regarding appellant’s disability status and referred her to Dr. Okezie for an impartial
medical examination.
In an August 30, 2017 report, Dr. Okezie found that there was no objective evidence that
appellant was totally or permanently disabled due to the accepted conditions or the temporary
aggravation of her preexisting cervical and lumbar spondylosis. He opined that she was capable
of medium level work and that a work-hardening program was necessary. Dr. Okezie noted that
appellant’s lifting capacity was potentially the chief limitation regarding her ability to return to
work as it was difficult to assess how much any 63-year-old female could lift. In his Form OWCP5c, he indicated that she was capable of working full time in a medium strength position with sixhour limitation on reaching above shoulder and lifting no more than 50 pounds occasionally.
However, before making a suitability determination and subjecting appellant to the penalty
provision of section 8106(c)(2), OWCP should have requested clarification from Dr. Okezie as to
whether she could return to work with the 50-pound lifting restriction, without first attending a
work-hardening program. The Board has previously explained that a medical opinion in a suitable
work termination case is of reduced probative value if it suggests that additional efforts, including
a work-hardening program were likely to be necessary to reach a return to an eight-hour workday.20
Dr. Okezie should have also been asked to clarify whether appellant was capable of performing
medium level work, if in fact her age and physical condition rendered her lifting restriction difficult
to determine, and in light of the fact that her September 5, 2016 FCE indicated that she could work
in a sedentary capacity if she participated in a formal work conditioning program. As OWCP did
not clarify these issues, Dr. Okezie’s opinion is not entitled to the special weight of the medical
evidence.
The Board also notes that OWCP did not properly clarify whether the offered position was
suitable. In reviewing the offered January 3, 2018 (revised) modified rural carrier position, OWCP
specifically advised the employing establishment on February 27, 2018 that the position was not
considered suitable. It noted that appellant’s schedule for Monday, Wednesday, Thursday, and
Friday was in excess of eight hours and requested an explanation as to why she was scheduled to
have one and a half hours for lunch on those days. The employing establishment, however, never
responded. As the defect still exists, OWCP could not then find that the offered position was
suitable.

19

See D.L., Docket No. 18-0862 (issued October 12, 2018); Kathy E. Murray, 55 ECAB 288 (2004).

20

G.B., Docket No. 07-1783 (issued February 6, 2008).

7

As OWCP has not established that the work offered to and refused or neglected by
appellant was a suitable position or medically suitable, the Board finds that it has not met its burden
of proof.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective August 14, 2018, as she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 13, 2019
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Analese B. Dunn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1606
Issued: January 18, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 2, 2016 appellant, through counsel, filed a timely appeal of a February 19,
2016 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 to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 13, 2015; and (2) whether
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.

appellant has met her burden of proof to establish any continuing disability or medical residuals
causally related to her employment injury.
On appeal counsel contends that the second opinion physician was not entitled to the
weight of the medical evidence and that there was an outstanding conflict of medical opinion
evidence.
FACTUAL HISTORY
On May 28, 2013 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained neck and back injuries on May 28, 2013 when her
postal truck lost control. She reported that as she was approaching a red light, she applied her
brakes and her vehicle began to swerve from side to side. Appellant could not regain control of
her vehicle, left the road, and struck a tree. On July 18, 2013 OWCP accepted her claim for
lumbar sprain and neck sprain. Appellant’s attending physician, Dr. Amit Bhargava, a Boardcertified physiatrist, released her to return to light-duty work on August 20, 2013 with
restrictions of lifting no more than 5 pounds, no bending, and no pushing or pulling more than 10
pounds. Appellant returned to light-duty work for part of the day on August 26, 2013, but was
sent home after the employing establishment determined that it could no longer accommodate
her work restrictions. Dr. Bhargava repeated his restrictions on September 3, 2013.
Appellant filed a claim for compensation (Form CA-7) for leave without pay from
August 24 through September 6, 2013. She underwent a lumbar computerized tomography (CT)
scan on September 13, 2013 which demonstrated mild degenerative changes in the lumbar spine.
On February 5, 2014 Dr. Bhargava diagnosed lumbago and found that appellant had reached
maximum medical improvement.
Appellant underwent a functional capacity evaluation on March 27, 2014. This testing
demonstrated that she could work in the light physical demand level. The test found that
appellant exhibited fair consistency of efforts and noted that she had a high perception of pain
and limited ability. Dr. Bhargava reviewed this testing on April 2, 2014 and diagnosed lumbago.
He recommended a work-hardening program. Dr. Bhargava completed a duty status report and
indicated that appellant could return to work restrictions including intermittent lifting up to 10
pounds, occasional walking, and occasional climbing. He provided illegible restrictions on
kneeling, bending, stooping, and twisting. Dr. Bhargava indicated that appellant could push and
pull up to 20 pounds occasionally and occasionally lift above the shoulder.
OWCP referred appellant for a second opinion examination with Dr. Willie Thompson, a
Board-certified orthopedic surgeon on May 14, 2014. Dr. Thompson completed a report on
May 30, 2014 and noted her history of injury. He noted appellant’s opinion that she was
experiencing “excruciating low back pain.” Dr. Thompson found that she did not wish to
actively participate in the examination and stopped the appointment.
Dr. Bhargava examined appellant on May 22, 2014 and diagnosed lumbago. Appellant
related having low back pain symptoms with constant aching, burning, stabbing, pressure,
throbbing, and cramping. Dr. Bhargava found that her gait was normal, that she had normal
sensation in the legs, normal muscle strength, and symmetrical reflexes.

2

In a letter dated June 18, 2014, OWCP proposed to suspend appellant’s compensation
benefits as she failed to cooperate with the May 30, 2014 second opinion evaluation. It afforded
her 14 days to present good cause for her failure to cooperate. In a note dated June 23, 2014,
appellant requested that the second opinion examination be rescheduled.
OWCP rescheduled the examination with Dr. Thompson on June 24, 2014. In a report
dated July 25, 2014, Dr. Thompson noted appellant’s history of injury on May 28, 2013. He
found that she had a normal gait with full range of motion of the cervical and lumbar spines.
Dr. Thompson noted no muscle wasting or atrophy. He found that appellant’s neurovascular
status was intact. Dr. Thompson reported that she had no paraspinous muscle spasms and she
failed to make an effort to walk on her heels or toes. He indicated that appellant’s straight leg
raising was negative bilaterally and that she had no motor or sensory deficits. Dr. Thompson
opined that it was reasonable to accept that she sustained soft tissue sprains or strains to her neck
and back as a result of her employment incident. However, he found no objective evidence of
any ongoing pathology. Dr. Thompson concluded, “In my opinion, all conditions related to the
injury of May 28, 2013 have resolved without residuals at this point in time.” He advised that
appellant could safely return to her work as a letter carrier and was perfectly capable of
performing all activities associated with her job as a letter carrier.
On August 5, September 5, October 6, and November 6, 2014 Dr. Bhargava repeated his
diagnosis of lumbago. He repeated appellant’s complaints of back pain, but noted that her gait
was normal, her sensation to light touch was normal, her muscle strength was normal, and that
her reflexes were symmetrical. Dr. Bhargava reported that flexion and extension of the lumbar
spine increased appellant’s pain.
In a letter dated December 22, 2014, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as, based on Dr. Thompson’s report, she had no continuing
medical residuals or disability from work due to her accepted employment injury. It allowed
appellant 30 days for a response.
Dr. Bhargava completed reports on December 3, 2014 and January 15, 2015 diagnosing
low back pain or lumbago. He repeated his findings and conclusions.
Appellant returned to full-duty work on January 17, 2015.
By decision dated March 13, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date finding that the weight of the medical
opinion evidence rested with Dr. Thompson and established that she had no medical residuals
and could return to her date-of-injury position.
Dr. Bhargava completed a note on February 17, 2015 and reported that appellant returned
to work on January 17, 2015 and experienced an increase in low back pain when she bent over to
pick up her lunch. He diagnosed lumbago.
On December 9, 2015 counsel requested reconsideration of the March 13, 2015
termination decision. She argued that Dr. Thompson failed to review appellant’s CT scan and
his report was not based on a complete factual history.

3

Dr. Ralph T. Salvagno, a Board-certified orthopedic surgeon, examined appellant on
November 13, 2015. He described her history of injury and reported that she lost consciousness.
Dr. Salvagno reported that appellant was unable to undergo a magnetic resonance imaging (MRI)
scan due to the presence of a metal device in her skull. He noted that she returned to work on
January 17, 2015 and experienced a severe increase of back pain when bending over to pick up
her lunch. Dr. Salvagno found that appellant’s gait was slightly antalgic with right-sided back
pain. He found marked tenderness in the right lumbar area and right sacroiliac joint.
Dr. Salvagno reported no sensory deficit and good motor strength with no atrophy. He
diagnosed chronic lumbar sprain with disc pathology at L4-5. Dr. Salvagno opined that
appellant’s January 17, 2015 event of bending over to pick up her lunch was insufficient to cause
her current condition. He found that appellant was disabled due to her accepted employment
injury of May 28, 2013 and provided work restrictions.
By decision dated February 19, 2016, OWCP denied modification of the March 13, 2015
termination decision, finding that Dr. Thompson’s report was entitled to the weight of the
medical opinion evidence.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 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 injury.4 Furthermore, the right to medical benefits
for an accepted condition is not limited to the period of entitlement for disability.5 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.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective March 13, 2015.
Appellant’s attending physician, Dr. Bhargava, provided a series of reports diagnosing
lumbago and opining that appellant was partially disabled from work. He based his findings on
appellant’s report of pain. Dr. Bhargava did not provide any objective findings in support of his
opinion, noting that appellant had normal gait, sensation to light touch was normal, her muscle
strength was normal, and her reflexes were symmetrical.

3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Id.

5

Furman G. Peake, 41 ECAB 361, 364 (1990).

6

Id.

4

OWCP referred appellant for a second opinion evaluation with Dr. Thompson who, in his
July 25, 2014 report, likewise made no objective findings supporting appellant’s ongoing back
strains or disability from work. Dr. Thompson found that appellant had a normal gait with full
range of motion of the cervical and lumbar spines. He noted no muscle wasting or atrophy.
Dr. Thompson found that appellant’s neurovascular status was intact. He reported that appellant
had no paraspinous muscle spasms and that she had no motor or sensory deficits. Dr. Thompson
found no objective evidence of any ongoing pathology and concluded that appellant’s
employment-related conditions and disability had resolved. He found that she had no residuals
and that she could return to her date-of-injury position.
The Board finds that Dr. Thompson’s report is entitled to the weight of the medical
opinion evidence and that it establishes that appellant’s employment-related injury and disability
had resolved by March 13, 2015. This report is based on a proper history of injury and noted
negative objective findings supporting ongoing conditions or residuals as a result of appellant’s
employment injury.
Following Dr. Thompson’s July 25, 2014 report, Dr. Bhargava submitted additional
reports. These reports also lack positive objective findings supporting ongoing disability or
medical residuals and are thus insufficient to overcome the weight of Dr. Thompson’s wellreasoned report or to create a conflict.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that she has disability and medical residuals causally
related to her accepted employment injury.7 To establish a causal relationship between the
condition, as well as any disability claimed, and the employment injury, the employee must
submit rationalized medical opinion evidence, based on a complete factual background,
supporting such a causal relationship. Rationalized medical opinion evidence is medical
evidence which includes a physician’s detailed 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 supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish any
continuing disability or residuals causally related to her employment injury on or after
March 13, 2015.
7

George Servetas, 43 ECAB 424, 430 (1992).

8

James Mack, 43 ECAB 321 (1991).

5

In support of her claim for continuing employment-related disability, appellant submitted
a report dated November 13, 2015 from Dr. Salvagno. He noted that she returned to work on
January 17, 2015 and experienced severe increased back pain due to bending over to pick up her
lunch. Dr. Salvagno found that appellant’s gait was slightly antalgic with right-sided back pain.
He found marked tenderness in the right lumbar area and right sacroiliac joint. Dr. Salvagno
reported no sensory deficit and good motor strength with no atrophy. He diagnosed chronic
lumbar sprain with disc pathology at L4-5. Dr. Salvagno opined that appellant’s January 17,
2015 event of bending over to pick up her lunch was insufficient to cause her current condition.
He found that appellant was disabled from work due to her accepted employment injury on
May 28, 2013 and provided work restrictions.
The Board finds that this report is not sufficiently detailed and well-reasoned to establish
appellant’s claim for continuing disability or medical residuals. While Dr. Salvagno diagnosed
chronic lumbar sprain, he did not explain how and why appellant’s soft tissue injury would
continue for almost two years after her accepted employment injury. He did not explain why he
believed that appellant was incapable of performing her date-of-injury position. As this report is
not well reasoned, it does not establish appellant’s claim for ongoing disability or residuals.
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 wage-loss
compensation and medical benefits effective March 13, 2015; and that appellant has not met her
burden of proof to establish any continuing disability or residuals causally related to her
employment injury.

6

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 18, 2017
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 08-881
Issued: September 22, 2008

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 February 4, 2008 appellant filed a timely appeal of the January 9, 2008 decision of the
Office of Workers’ Compensation Programs.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits on March 21, 2004 on the grounds that his accepted conditions had
resolved.
FACTUAL HISTORY
On May 18, 2004 appellant filed a traumatic injury claim alleging that on May 11, 2004
he sustained a back injury while distributing heavy bundles of catalogs.
On June 29, 2004 the Office denied appellant’s claim on the grounds that the evidence
did not support his claim.

On June 10, 2005 the Office vacated the June 29, 2004 decision and accepted appellant’s
claim for sprain and strain of the lumbar region. It also noted that appellant was totally disabled
from work for the period May 11 to June 30, 2004. Appellant stopped work in July 27, 2004.
In an August 17, 2005 letter, Dr. Russell Chavey, Board-certified in family medicine
addressed appellant’s complete medical disability. He described appellant’s history of back
problems since 2000 and opined that appellant’s current medical disability was due to a herniated
disc which resulted in painful lumbar radiculopathy all of which was related to a work injury.
Dr. Chavey opined that appellant’s work-related injury triggered his current disability.
In an October 28, 2005 letter, Dr. Chavey stated that appellant was currently totally
disabled from work due to an acute injury suffered on May 11, 2004. He explained that
appellant has a history of prior work-related back injuries. Dr. Chavey stated that the day before
the injury appellant had no symptoms and no restrictions and from the date of the injury forward
appellant had been suffering from ongoing symptoms which prohibited him from working his
normal job.
On October 27, 2005 the Office informed appellant that a second opinion examination
was necessary. In the statement of accepted facts it noted that appellant had accepted claims for
a work-related medical condition of lumbosacral strain which was later expanded to include
sciatica, (related to a November 14, 2000 traumatic injury1) and that both conditions were found
to have resolved as of April 16, 2003. The statement of accepted facts also noted that the
May 11, 2004 claim was accepted for lumbar sprain/strain.
The Office provided questions for the specialist including whether appellant’s condition
of “back contusion and left elbow abrasion” had resolved, whether appellant suffers from
degenerative disc disease and herniated lumbar disc and if so whether the conditions were due to
the May 11, 2004 work injury. It also wanted to know whether there were current active
residuals of these conditions, and whether appellant’s work injury prevented him from
performing the duties of his date-of-injury job as a clerk and if so what type of work he was
capable of performing.
On November 28, 2005 appellant was evaluated by Dr. Scott T. Monson, Board-certified
in orthopedic surgery. In his November 28, 2005 report, Dr. Monson noted that the MRI scan
report suggested a disc protrusion at L5-S1 and a small annular tear at L4. He also reviewed the
films and noted that the bottom three levels showed degenerative disc disease with a small L5-S1
central disc protrusion. Dr. Monson opined that appellant’s central disc protrusion was most
likely related to his degenerative disc disease but could also be related to the lifting incident and
that he had no means of knowing with one hundred percent medical certainty which it was. He
stated that appellant may have had a sprain/strain at the time of the lifting incident but they
usually resolve within 12 weeks. Dr. Monson also opined that any soft tissue injury sustained
would now be resolved.
In a February 7, 2006 letter, the Office requested clarification from Dr. Monson regarding
his medical report. It wanted to know whether the May 11, 2004 work event aggravated
1

The November 14, 2000 traumatic injury is a separate claim.

2

appellant’s degenerative disc disease at L5-S1 and whether appellant was capable of performing
the modified assignment.
In a March 17, 2006 supplemental report, Dr. Monson stated that a herniated nucleus
pulposus can occur at the time of lifting and may have temporarily aggravated the degenerative
disease. He stated that the disc protrusions at L5-S1 could be related to appellant’s preexisting
lumbar disc disease as well as the May 11, 2004 work injury but he had no way of knowing with
certainty as either could be the cause. Dr. Monson also found that appellant was capable of
working with restrictions in a job that did not involve repetitive bending, had a sitting and
standing option and where appellant did not have to lift more than 20 pounds.
In a June 7, 2006 letter, the Office requested clarification from Dr. Monson as to whether
the May 11, 2004 injury caused or contributed to the degenerative disc disease and herniated disc
at L5-S1, and if so did it worsen to the point that appellant was unable to perform the modified
duties as of July 27, 2004 and whether any of these conditions had resolved.
In a September 26, 2006 supplemental report, Dr. Monson stated that it did not appear
that the incident caused the degenerative disc disease or herniated disc at L5-S1. He further
stated that appellant may have sustained a sprain, strain or aggravation to his preexisting
condition, however, any aggravation sustained would now be resolved. Dr. Monson opined that
appellant was capable of working with restrictions.
In an October 13, 2006 letter, the Office requested that Dr. Monson clarify whether the
restrictions outlined in his report were due to the preexisting degenerative disease or the May 11,
2004 injury.
In a November 6, 2006 supplemental report, Dr. Monson opined that the work restrictions
were due to appellant’s preexisting condition.
In a December 12, 2006 letter, the Office requested that Dr. Chavey review and offer an
opinion as to whether he agreed with Dr. Monson’s opinion and findings.
In a December 15, 2006 letter, Dr. Chavey agreed with the objective findings of
Dr. Monson that appellant’s injuries were primarily soft tissue related, superimposed on
degenerative changes and that the soft tissue should have resolved by this time. However,
Dr. Chavey pointed out that appellant did not received medical treatment, consisting of physical
therapy, for weeks or months after the injury due to a refusal of authorization by the Office and
that the lack of effective medical treatment of the soft tissue injury resulted in a chronic medical
disability impairing appellant’s ability to return to work.
The Office determined that a conflict of opinion existed between Dr. Chavey and
Dr. Monson as to whether appellant’s continuing disability was related to his employment, the
degree of disability associated with appellant’s work-related conditions and the physical
restrictions imposed by residuals from appellant’s work injury and sent him to another physician.
On April 16, 2007 appellant was evaluated by Dr. William Higginbotham, Board-certified in
orthopedic surgery.

3

In his April 16, 2007 report, Dr. Higginbotham took appellant’s history, evaluated his
physical capabilities and reviewed previous MRI scan reports. Dr. Higginbotham reviewed the
MRI scan films and found evidence of a small central disc bulge or herniation at L5-S1 and
evidence of changes at the posterior aspect of the disc L4-5. He opined that appellant showed
subjective findings consistent with mild lumbar radiculopathy. Dr. Higginbotham stated that
there was nothing specific about the findings on the MRI scan that related to appellant’s
complaints of pain. He further explained that the MRI scan did not constitute objective criterion
suggesting that there was pathology in his lumbar spine. Dr. Higginbotham opined that based on
the information in appellant’s files that he would be capable of performing his work activities
and there were no findings that appellant was suffering from residuals related to his May 11,
2004 incident.
On June 13, 2007 the Office requested a supplemental report from Dr. Higginbotham to
address whether appellant’s lumbar sprain and strain had ceased and if so on what date.
In his June 18, 2007 supplemental report, Dr. Higginbotham opined that lumbar sprain or
strain usually recovers in two to three months or up to six months but is not usually an ongoing
condition. He diagnosed appellant with lumbar radiculopathy based on reports from appellant’s
treating physicians. Dr. Higginbotham opined that, based on the records that as of January 2005
the diagnosis of lumbar sprain/strain had changed to lumbar degenerative disc disease with
lumbar radiculopathy. He further stated that there was nothing specific about appellant’s
changes which would relate them to his work incident on May 11, 2004. Dr. Higginbotham
found there to be subjective findings consistent with mild left lumbar radiculopathy but no
objective findings consistent with the diagnosis. He also stated that appellant did not appear to
be incapacitated from work.
On June 11, 2007 the Office issued a notice of proposed termination of compensation and
medical benefits based on medical reports from Dr. Higginbotham.
In a July 31, 2007 letter, Dr. Chavey reviewed Dr. Higginbotham’s reports and disagreed
with the conclusions. He opined that appellant’s sprain and strain evolved into lumbar
radiculopathy due to lack of treatment for months and that appellant continues to have symptoms
similar to the ones immediately following the May 11, 2004 injury. Dr. Chavey also noted that
Dr. Higginbotham’s conclusions were not consistent with the examination of his letter.
On August 20, 2007 the Office terminated appellant’s compensation and medical benefits
based on the medical evidence which established that appellant no longer had residuals of the
accepted condition and found that the weight of medical evidence was with Dr. Higginbotham.
Appellant, through his representative, requested an oral hearing which was held on
November 26, 2007.
On January 9, 2008 the Office issued a decision affirming the August 20, 2007
termination of appellant’s medical benefits and compensation.

4

LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2 The
Office may not terminate compensation without establishing that the disability has ceased or that
it is no longer related to the employment.3 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.4
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part
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.5 Where a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background must be given special weight.6
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.7
ANALYSIS
The Board finds that the Office did not meet its burden of proof in this case. As there
was a conflict in opinion between Dr. Chavey and Dr. Monson, appellant was properly referred
to Dr. Higginbotham for an impartial medical examination. The issue to be resolved by
Dr. Higginbotham was whether there were any residuals of appellant’s employment injury and
whether these residuals precluded him from performing his work duties. Dr. Higginbotham
opined that the diagnosis of lumbar sprain/strain had changed to lumbar degenerative disc
disease with lumbar radiculopathy in January 2005. While appellant’s physician, Dr. Chavey,
explained that appellant’s accepted diagnosis of lumbar sprain/strain had evolved into lumbar
radiculopathy due to lack of medical treatment, Dr. Higginbotham appeared to agree with the
assessment that appellant’s diagnosis “evolved” from sprain/strain to lumbar disc disease.

2

See Kathryn E. Demarsh, 56 ECAB 267 (2005). See also Beverly Grimes, 54 ECAB 543 (2003).

3

Id.

4

James M. Frasher, 53 ECAB 794 (2002).

5

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
6

Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

7

Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.0810(11)(c)(1)-(2)
(April 1993).

5

Dr. Higginbotham however without further explanation or medical rationale concluded that this
condition was not causally related to the accepted injury.
Furthermore, Dr. Higginbotham reviewed MRI scan films and found a small central disc
bulge or herniation at L5-S1 and changes at L4-5, but went on to opine that the MRI scan films
did not constitute objective criterion of pathology in the lumbar spine. Again, he did not
adequately explain how he concluded that there were no objective findings of pathology when
the MRI scan studies and appellant’s complaints were consistent with lumbar radiculopathy.
As Dr. Higginbotham’s report was not sufficiently rationalized to resolve the conflict in
the medical opinion evidence, the Office did not meet its burden of proof in this case.
CONCLUSION
The Board finds that Office did not meet its burden of proof to terminate compensation
benefits.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 22, 2008
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Schenectady, NY,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0346
Issued: November 26, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On December 3, 2018 appellant filed a timely appeal from an October 30, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as 19-0346.
This case has previously been before the Board.1 The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On January 3, 1996 appellant, then a 46-year-old aircraft mechanic foreman, filed a notice
of traumatic injury (Form CA-1) alleging that he sustained a back injury while moving lockers
while in the performance of duty. He stopped work on January 8, 1996 and worked intermittently
before returning to full duty work on October 5, 1998. OWCP initially accepted lumbosacral strain
and subsequently accepted displacement of a lumbar intervertebral disc without myelopathy and
other acquired deformities of the ankle and foot, bilateral. On August 14, 1996 appellant
underwent a hemilaminotomy and microdiscectomy at L4-5.2 By decision dated September 9,
1

Docket No. 16-0715 (issued August 11, 2016); Docket No. 17-1390 (issued April 23, 2018).

2
Appellant was suspended without pay effective April 21, 2002 and terminated for cause effective
September 12, 2002.

2019, OWCP denied appellant’s claim for a recurrence of disability, commencing
September 20, 2006. Appellant requested reconsideration and by decision dated June 15, 2011,
OWCP vacated the prior decision and accepted appellant’s recurrence claim. On October 8, 2014,
OWCP proposed to rescind the June 15, 2011 acceptance of the recurrence claim. OWCP finalized
the rescission by decision dated May 15, 2015. Appellant requested reconsideration, but by
decision dated February 9, 2016, OWCP denied modification of its prior decision. On
February 29, 2016, appellant appealed to the Board. By decision dated August 11, 2016, the Board
found that OWCP improperly rescinded its acceptance of appellant’s recurrence claim .3
On November 18, 2016 OWCP again accepted appellant’s claim for a recurrence of
disability commencing September 20, 2006. However, on March 15, 2017, it again proposed to
rescind its acceptance of appellant’s recurrence claim. By decision dated April 28, 2017, OWCP
finalized that rescission and by decision dated May 1, 2017 it denied appellant’s recurrence claim.
On June 8, 2017 appellant appealed the April 28 and May 1, 2017 decisions to the Board. By
decision dated April 23, 2018, the Board found that OWCP had met its burden of proof to rescind
its acceptance of the September 20, 2006 recurrence claim. The Board further found that appellant
had not met his burden of proof to establish a recurrence of total disability commencing
September 20, 2006 and that appellant had not met his burden of proof to establish a recurrence of
total disability commencing April 8, 2002 causally related to his January 3, 1996 employment
injury.4
In a letter dated July 13, 2017, which was during the pendency of appellant’s prior appeal
to the Board, OWCP provided Dr. Kevin Scott, a Board-certified orthopedic surgeon who had
provided a January 18, 2017 second-opinion evaluation, with an updated statement of accepted
facts (SOAF). In the letter accompanying, the SOAF it asked that he provide a supplemental report
regarding appellant’s lumbar condition. On July 27, 2017 OWCP received a July 18, 2017
addendum report from Dr. Scott in which he noted appellant’s 1996 employment injury and
indicated that it had been his most significant injury.
On August 17, 2018 appellant, through his then-representative, requested reconsideration
and submitted additional medical evidence including several treatment notes from Dr. Paul
Salerno, Board-certified in physical medicine and rehabilitation, dated May 1, 2017 to
October 18, 2018.
By decision dated October 30, 2018, OWCP denied modification of its April 28 and May 1,
2017 decisions. It noted medical evidence submitted, but did not reference the July 18, 2017 report
from Dr. Scott which was new evidence not previously considered by OWCP or the Board.
The Board has duly considered the matter and finds that this case is not in posture for a
decision. In the case of William A. Couch, the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by it before the
final decision is issued. While OWCP is not required to list every piece of evidence submitted to
the record, the record is clear that Dr. Scott’s July 18, 2017 report was received, but not reviewed
3

Docket No. 16-0715, supra note 1.

4

Docket No. 17-1390, supra note 1.

2

by OWCP, prior to the issuance of its October 30, 2018 decision.5 As the Board’s decisions are
final as to the subject matter appealed, it is crucial that all evidence relevant to the subject matter
of the claim properly submitted to OWCP be reviewed and addressed.6
The case must, therefore, be remanded for proper review of the all the evidence of record.
Following any necessary further development, OWCP shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: November 26, 2019
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5

In the October 30, 2018 decision, OWCP merely noted that Dr. Scott had submitted a January 18, 2017 report that
had previously been reviewed by the Board.
6

S.D., Docket No. 18-1507 (issued June 21, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Scottsboro, AL, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0691
Issued: July 20, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 23, 2016 appellant, through counsel, filed a timely appeal from January 4,
and February 19, 2016 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to factors of his federal employment.

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.

FACTUAL HISTORY
On October 15, 2014 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained injuries as a result of his federal
employment. On the claim form he reported that he had two previous disc fusions and that he
had come to believe they were related to his job, as he had a substantial increase in pain over the
past three to four months from performing his regular duties. Appellant identified standing,
walking, driving, twisting, bending, reaching, and lifting as causing pain in his neck and lower
back. He indicated that he first realized his condition was employment related on March 15,
2014, and noted that he had previously filed a traumatic injury claim (Form CA-1) for injury on
March 15, 2014.3 Appellant stopped work on March 15, 2014.
In a narrative statement received on October 16, 2014, appellant reported working as a
letter carrier for almost 30 years and asserted that he had been treated for numerous muscle
strains in his neck, shoulders, and back, that in retrospect he should have filed claims with
OWCP. He related that on March 15, 2014 he felt increasing pain in his neck and back, radiating
into his right arm and right leg. According to appellant, he was forced to return to work on
April 3, 2014 to modified duty, but was continually pushed by the employing establishment to
perform duties that caused additional pain. Appellant noted an injury to his neck on June 7, 2014
when he was struck in the head with a small parcel. He described his job duties as sorting mail
with reaching above shoulders, lifting and unloading trays, along with delivery duties of walking
and carrying mail.
The employing establishment controverted the claim in a letter dated October 2, 2014. It
was noted that appellant had already filed a traumatic injury claim for March 15, 2014, and the
current claim was based on preexisting conditions.
As to medical evidence, appellant submitted a Form CA-20 report dated October 6, 2014
from Dr. Curt Freudenberger, a Board-certified orthopedic surgeon.
Dr. Freudenberger
diagnosed postoperative neck pain and checked a box marked “yes” that the condition was
employment related.
By letter dated November 4, 2014, OWCP requested that appellant submit additional
evidence in support of his claim. It afforded him 30 days to submit further medical evidence.
On November 7, 2014 OWCP received a September 22, 2014 report from
Dr. Freudenberger, who reported that appellant was injured on March 15, 2014 and referred to an
April 2, 2014 report.4 Dr. Freudenberger reported that appellant had undergone a C6-7
laminoforaminotomy due to his injury.5
3

OWCP denied the traumatic injury claim in decisions dated August 14, 2014 and May 22, 2015, OWCP file
number xxxxxx481. The Board affirmed the May 22, 2015 decision on September 8, 2015. Docket No. 15-1369
(issued September 8, 2015).
4

The traumatic injury claim contains an April 2, 2014 report from Dr. Freudenberger, noting that on March 15,
2014 appellant was working on a task that required a lot of twisting, and appellant reported right upper extremity
pain. Dr. Freudenberger diagnosed cervical spondylosis, cervical stenosis, cervical radiculopathy, and lumbar
spondylosis.
5

The surgery took place on July 29, 2014.

2

The record contains a surgery report dated November 22, 2005 from Dr. Robert Hash, a
Board-certified neurosurgeon, indicating that appellant underwent a C5-6 anterior discectomy
and fusion. In a report dated November 16, 2011, Dr. John Johnson, a Board-certified
neurosurgeon, indicated appellant underwent a C6-7 discectomy and fusion on that date.
By decision dated December 8, 2014, OWCP denied the claim for compensation. It
found the medical evidence of record insufficient to establish a diagnosed medical condition
causally related to the identified employment factors.
On June 4, 2015 appellant, through counsel, requested reconsideration. Counsel argued
that sufficient medical evidence had been submitted in support of the claim. Appellant submitted
reports dated March 16, 2015, and April 6, 2015 from Dr. Alan Elliott, a Board-certified
internist. Dr. Elliott provided results on examination and diagnosed myalgia, myositis,
fibromyalgia, polyarthropathy, fatigue, and degenerative disc disease, but did not address the
cause of these conditions.
By decision dated July 9, 2015, OWCP reviewed the case on its merits and denied
modification. It again found that the medical evidence of record was insufficient to establish the
claim for compensation.
Appellant, through counsel, requested reconsideration by letter dated December 2, 2015.
He submitted a November 25, 2015 report from Dr. William Somers, a Board-certified
orthopedic surgeon. Dr. Somers noted that appellant had been working at the employing
establishment for nearly 30 years, and approximately 15 to 20 years ago began to experience
neck pain. He reviewed appellant’s medical history, noting the previous surgeries performed.
Dr. Somers provided results on examination and diagnosed multi-level cervical degenerative disc
disease “accelerated/aggravated approximately 2011,” status post surgeries in 2005, 2011,
and 2014, suspected nonunion C6-7, and mild lumbar degenerative disc disease. He wrote that
the “primary scenario” was aggravation of preexisting cervical disc disease, asserting that
appellant’s condition was “continually aggravated by the heavy physical demand work required
of a city letter carrier.”
By decision dated January 4, 2016, OWCP reviewed the merits of the claim and denied
modification. It found that the medical evidence from Dr. Somers was insufficient to establish
the claim for compensation.
In a letter dated February 8, 2016, appellant, through counsel, again requested
reconsideration. Appellant submitted a February 6, 2016 e-mail from Dr. Somers, who asserted
that he had provided medical rationale in his prior report. Dr. Somers wrote that appellant
“clearly got better, not well but better, when the physical demands were decreased while in a
managerial position. It is difficult to separate natural progression from job aggravation, but in
this case, the type of work he was doing clearly aggravated his problem.” He noted that there is
a 10 to 15 percent increased risk for degenerative disc disease in a segment adjacent to a fusion
and with preexisting change, related to increased stress on the remaining motion segments.
Dr. Somers also noted that appellant has some evidence for C4 problems above the fusions and
some evidence on studies that there is a pseudarthrosis at the C6 level. He opined, “All of this
could be explained by natural progression, but you still have the aggravation with his work
activity and decreased symptoms when his work load was decreased documenting the work
aggravation. By the way, adjacent disc degeneration would fall under acceleration. Although
3

implied in my report, adjacent segment degeneration was not explicitly mentioned as a cause for
acceleration.”
By decision dated February 19, 2016, OWCP reviewed the merits of the claim and denied
modification. It found that the medical evidence of record was not of sufficient probative value
to establish the claim for compensation. OWCP also found that Dr. Somers’ definition of
aggravation differed from established precedent.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.6
To establish that an injury was sustained in the performance of duty, a claimant must
submit:
“(1) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed;
“(2) an factual statement identifying 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.”7
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.8 Aphysician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.9
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by sound medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.10
ANALYSIS
In the present case, appellant has alleged that the duties performed in his federal
employment nearly 30 years as a mail carrier contributed to his neck and back conditions. He
6

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

See Robert G. Morris, 48 ECAB 238 (1996).

9

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

Id.

4

discussed his job duties and activities that included standing, walking, driving, twisting, bending,
reaching, and lifting. OWCP does not contest that appellant performed the identified activities.
The issue is whether appellant has submitted probative medical evidence that meets his
burden of proof to establish the claim for compensation. In this regard the Board notes that
Dr. Freudenberger had diagnosed postoperative neck pain and checked a box marked “yes” that
it was causally related to employment. The checking of a box marked “yes” in a form report,
without additional explanation or rationale, is insufficient to establish causal relationship.11 As to
the reports of Dr. Elliott, he does not provide an opinion on causal relationship with employment.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is
of limited probative value on the issue of causal relationship.12
Dr. Somers has submitted a November 25, 2015 report and a supplementary letter dated
February 6, 2016. In his November 25, 2015 report, he did provide a medical history that noted the
prior surgeries that included a November 22, 2005 C5-6 fusion, a November 16, 2011 C6-7 fusion,
and a July 29, 2014 C6-7 laminoforaminotomy. However, as to the relevant factual history,
Dr. Somers does not discuss the specific job duties that appellant has identified or otherwise
demonstrate an understanding of the nature and extent of the repetitive activity identified by
appellant.
In addition to lacking a complete factual background, Dr. Somers does not provide a
medical opinion on causal relationship supported by sound medical rationale. He opined that
appellant’s cervical degenerative disc disease was aggravated by his federal employment.
OWCP notes in the February 19, 2016 decision that an opinion with respect to aggravation must
differentiate between the effects of the work-related injury or disease and the preexisting
condition.13 The Board has held that the physician must clearly explain the nature and extent of
any aggravation, including whether temporary or permanent.14 The deficiency in the opinion
from Dr. Somers is not a failure to understand the definition of aggravation, but a failure to
clearly explain how the identified work activity aggravated appellant’s cervical condition. There
is no explanation of the pathophysiologic mechanism as to how appellant’s condition was
aggravated by employment activity.15 The only rationale offered by Dr. Somers is a reference to
symptoms decreasing when appellant’s work load decreased. This does not constitute a
rationalized medical opinion on causal relationship.16
On appeal, appellant’s counsel argues the reports from Dr. Somers are sufficient to meet
appellant’s burden of proof. For the above reasons, the Board finds that appellant has not met
his burden of proof in this case.
11

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

12

S.E., Docket No. 08-2214 (issued May 6, 2009).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013).

14

See R.H., Docket No. 15-1785 (issued January 29, 2016).

15

See William J. Shall, Docket No. 03-1973 (issued December 8, 2003).

16

See D.S., Docket No. 15-1257 (issued November 24, 2015) (opinion noting that symptoms decreased when
claimant was not at work did not establish causal relationship between work factors and a diagnosed condition).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 19 and January 4, 2016 are affirmed.
Issued: July 20, 2016
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

6