United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Middletown, CT, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1641
Issued: February 15, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 24, 2017 appellant, through counsel, filed a timely appeal from a May 5, 2017
merit decision by 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 appellant has met her burden of proof to establish carpal tunnel
syndrome causally related to factors of her federal employment.
FACTUAL HISTORY
On August 20, 2014 appellant, then a 52-year-old immigration service officer, filed an
occupational disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome as a
result of factors of her federal employment. Appellant alleged that management deliberately
assigned her additional duties which increased the use and repetitive movement of her arms. She
contended that the employing establishment ignored her request for a reasonable
accommodation. In a statement on the reverse side of the claim form, the employing
establishment indicated that appellant was originally accommodated with light duty in customer
service and that in January 2014 she was transitioning back to original duties when her pain was
exacerbated. The employing establishment noted that appellant was returned to customer service
for temporary light duty, but would now be placed back in her full-duty position with
modification.3
In support of her claim, appellant submitted an October 24, 2013 note by Dr. Laura
Crandall, a Board-certified internist. Dr. Crandall indicated that appellant was experiencing
symptoms of pain and neuropathy in the left upper extremity, which were exacerbated by the
type of work she performed. She recommended that appellant be switched to lighter-duty work
that would require her to process only 50 percent of the paperwork she currently handled.
In a December 6, 2013 response to questions from the employing establishment regarding
appellant’s duty status, Dr. Crandall noted that appellant’s left lateral epicondylitis had the
potential to improve with ergonomic accommodations as well as further physical therapy. With
regard to appellant’s left rotator cuff tendinitis, she noted that further assessment required
additional imaging studies. However, Dr. Crandall concluded that it was likely that management
of appellant’s symptoms of pain and weakness would improve with reduction in the physical
demands placed on her left upper extremity. With regard to appellant’s left carpal tunnel
syndrome and possible cubital tunnel syndrome, she determined that appellant’s prognosis for
this condition depended on her ability to minimize repetitive trauma to the left upper extremity
by reduction of fine manipulative movement such as grasping, filing, and typing. Dr. Crandall
recommended that appellant be given a chair that did not require her arm to be in a position that
exacerbated her symptoms of pain numbness, tingling, or weakness. She further recommended
that appellant not be required to process the amount of paperwork that would exacerbate her
symptoms.
In an April 28, 2014 note, Dr. Crandall indicated that appellant continued to experience
left upper extremity pain, neuropathy, and limited range of motion which had not improved since

3

Appellant filed a previous claim with OWCP for an injury on February 16, 2012 when she hit her elbow on an
elevator frame while entering an elevator. OWCP accepted this claim for lateral epicondylitis. OWCP File No.
xxxxxx774.

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her original injury over a year ago. She opined that appellant had not reached maximum medical
improvement and had been referred for further testing.
In a June 24, 2014 letter, Dr. Crandall indicated that after reviewing the duty status report
(Form CA-17), she was of the opinion that appellant could handle the type of work and amount
of hours per day for each activity. She further indicated that her recommended restriction was
for appellant to be allowed twice as much time to complete typing, grasping, filing, twisting, and
lifting. Dr. Crandall indicated that by allowing appellant twice as much time to complete each
task, it would effectively require her to have to process only 50 percent of the paperwork she was
expected to handle in her regular-duty assignment, before being switched to lighter duty.
A May 14, 2014 electromyography (EMG) study was interpreted by Dr. Marina
Zaretskaya Fuchs, a Board-certified psychiatrist and neurologist, as raising the possibility of
chronic, left-sided C6-C7 radiculopathy, and suggesting the presence of mild-degree, left-sided
median sensory neuropathy at the wrist as seen in carpal tunnel syndrome.
By development letter to appellant dated September 22, 2014, OWCP indicated that
further information was necessary to support her claim. Appellant was afforded 30 days to
submit the required evidence.
In a response received by OWCP on November 4, 2014, appellant alleged that she was
treated improperly with regard to her leave requests. She alleged that she received disparate
treatment from the employing establishment. Appellant argued that she experienced hostility
and discrimination due to her age and race. She further noted that she asked for a reasonable
accommodation for her physical injuries.
By decision dated March 9, 2015, OWCP denied appellant’s claim as she failed to
establish that her medical condition was causally related to the accepted employment factors. It
also advised appellant that, if she wished to make a claim for an emotional condition, she must
file a separate claim.
By letter received by OWCP on March 19, 2015, appellant, through counsel, requested a
telephonic hearing before an OWCP hearing representative.
In a May 11, 2015 procedure note, Dr. John Marino, a Board-certified physiatrist,
interpreted an electromyogram (EMG) as evidencing mild left carpal tunnel syndrome.
In an April 6, 2015 progress note, Dr. John M. Aversa, a Board-certified orthopedic
surgeon, diagnosed carpal tunnel syndrome as well as probable flexor tenosynovitis, exacerbated
by her work. He also noted that appellant demonstrated early carpal tunnel syndrome and C7
radiculopathy. In a June 16, 2015 note, Dr. Aversa indicated that appellant should minimize use
of her hands for typing due to bilateral hand pain.
In a June 27, 2015 note, appellant alleged that she was denied a request for work
accommodation, and that, if she had received the accommodation, she would not have needed to
file the second claim.

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At the hearing held on October 13, 2015, appellant testified that she worked for the
employing establishment for 24 years. She noted that her job duties required her to do repetitive
typing and grasping. Appellant also discussed her medical treatment. The record was kept open
for 30 days to provide appellant the opportunity to submit a more detailed medical report.
In a November 14, 2015 letter, Dr. Crandall indicated that appellant’s first work-related
injury was carpal tunnel syndrome which caused upper extremity pain, numbness, and tingling.
She reported that this caused and exacerbated her duties at work including carrying files, typing,
grasping, and filing. Dr. Crandall noted that her other work-related injury was left lateral
epicondylitis which was caused by an elbow injury sustained at work. She reported that the
injury caused pain which was exacerbated by carrying files, typing, and filing. Dr. Crandall
noted that appellant’s current work duties included sitting, lifting, carrying, standing, walking,
twisting, pulling, pushing, fine manipulation, simple grasping, reaching above the shoulder,
kneeling, bending, stooping, and operating machinery. She opined that appellant was capable of
performing all of her duties, but at a slower pace because of the repetitive nature of these tasks
and the strain on her upper extremity, which exacerbated the symptoms of her injuries.
Dr. Crandall recommended that appellant be restricted from lifting over 10 pounds.
On December 3, 2015 appellant submitted earlier reports by Dr. Crandall. In an April 23,
2014 note, Dr. Crandall diagnosed hypertension and radiculopathy. In a May 19, 2014 report,
she again diagnosed radiculopathy and hypertension. In a February 26, 2015 note, Dr. Crandall
noted that appellant had worsening carpal tunnel syndrome and hypertension.
By decision dated December 22, 2015, the hearing representative affirmed the March 9,
2015 decision. She determined that appellant had not established causal relationship between the
claimed condition and factors of her federal employment. The hearing representative concluded
that the medical evidence of record failed to provide anything other than a very general
description of what appellant’s job duties were, but failed to explain that a diagnosed condition
had been caused by that activity.
On December 6, 2016 appellant, through counsel, requested reconsideration of the
December 22, 2015 decision.
In a July 13, 2016 note, Dr. Crandall indicated that appellant was to be excused from
work through July 15, 2016 due to illness for which she was receiving treatment.
In a July 18, 2016 note, Kevin Pasley, a physician assistant, indicated that appellant had a
diagnosis of lumbar radiculopathy and was excused from work until follow up later this week.
Appellant also submitted copies of prescriptions.
By decision dated May 5, 2017, OWCP reviewed appellant’s case on the merits, but
denied modification of the December 22, 2016 decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that the injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a 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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence must include a physician’s rationalized 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.8
ANALYSIS
The Board finds that appellant has not established carpal tunnel syndrome causally
related to the accepted factors of her federal employment.
Dr. Crandall opined that appellant’s left carpal tunnel syndrome was caused and
exacerbated by her work duties including carrying files, typing, grasping, and lifting. Although
this opinion is generally supportive of causal relationship, she did not provide adequate medical
rationale explaining the basis of the opinion, did not explain the process by which these duties
caused appellant’s carpal tunnel syndrome, and did not explain why the condition was not related
4

Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999).

7

C.L., Docket No. 17-1137 (issued September 14, 2017).

8

Id.

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to nonwork factors.9 A mere conclusory opinion provided by a physician without the necessary
rationale explaining how and why the incident or work factors were sufficient to result in the
diagnosed medical condition is insufficient to meet a claimant’s burden of proof to establish a
claim.10
Similarly, Dr. Aversa diagnosed carpal tunnel syndrome as well as probable flexor
tenosynovitis, exacerbated by her work. He also noted that appellant demonstrated early carpal
tunnel syndrome and C7 radiculopathy. However, Dr. Aversa also did not provide a clear
opinion, supported by medical rationale, explaining how physiologically appellant’s employment
duties caused her diagnosed conditions.11
Various physicians interpreted diagnostic studies. Dr. Fuchs found electrical evidence
that raised the possibility of chronic left-sided C6-7 radiculopathy, and additional electrical
evidence to suggest the presence of mild degree, left-sided median sensory neuropathy at the
wrist as seen in carpal tunnel syndrome. Dr. Marino interpreted an EMG as evincing mild left
carpal tunnel syndrome. However, these diagnostic studies are of limited probative value as they
do not address whether appellant’s federal employment caused the diagnosed conditions.12
Finally, appellant submitted reports by Mr. Pasley, a physician assistant. However, the
Board has held that reports by a physician assistant are not considered medical evidence as
physician assistants are not considered physicians under FECA.13
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.14 An award of compensation may not
be based on surmise, conjecture, speculation, or upon appellant’s own belief that there was a
causal relationship between her condition and her employment.15 Causal relationship must be
based on rationalized medical opinion evidence.16 A physician must accurately describe
appellant’s work duties and medically explain the physiological process by which these duties

9

S.C., Docket No. 16-1322 (issued January 18, 2017).

10

J.D., Docket No. 14-2061 (issued February 27, 2015).

11

See S.F., Docket No. 17-0463 (issued September 8, 2017).

12

G.M., Docket No. 14-2057 (issued May 12, 2015).

13

See David P. Sawchuk, 57 ECAB 316, 320 n. 11 (2006) (lay individuals such as physician assistants, nurses
and physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this
subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law).
14

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
569 (2006).
15

Patricia J. Glenn, 53 ECAB 159, 160 (2001).

16

M.E., Docket No. 14-1064 (issued September 29, 2014).

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would have caused or aggravated her condition.17 As appellant has failed to submit a
rationalized medical opinion supporting that her medical condition was causally related to the
accepted factors of her federal employment, she did not meet her burden of proof to establish her
claim.
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 established that she suffered from carpal tunnel as
causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2017 is affirmed.
Issued: February 15, 2018
Washington, DC

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

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

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

17

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also G.G., Docket
No. 15-0234 (issued April 9, 2015).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY, Keyport, WA,
Employer
__________________________________________

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

Docket No. 13-875
Issued: August 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 1, 2013 appellant filed a timely appeal from a February 6, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than a four percent hearing loss in the left
ear, for which he received a schedule award.
FACTUAL HISTORY
On February 29, 2012 appellant, then a 50-year-old retired engineering technician, filed
an occupational disease claim alleging hearing loss as a result of exposure to loud noise in his
federal employment. He first related his condition to his work on March 1, 2006.

1

5 U.S.C. § 8101 et seq.

In support of his claim, appellant submitted a February 29, 2012 report from
Dr. Gerald G. Randolph, a Board-certified otolaryngologist, who noted appellant’s occupational
history as an ordinance equipment mechanic at the employing establishment from 1982 until his
retirement in 2006. Dr. Randolph related that appellant had undergone audiometric evaluation
with Dr. Amy Becken, an audiologist. The audiogram revealed hearing loss in the higher
frequencies with an audiometric configuration compatible with hearing loss due to noise
exposure, while the conductive component to appellant’s hearing loss in the lower frequencies
was not due to industrial causes. Dr. Randolph determined that appellant had a 39 percent
hearing loss in the right ear, 15 percent hearing loss in the left, or a binaural hearing loss at 19
percent. He diagnosed appellant with bilateral mixed-type hearing loss.
OWCP received a series of employing establishment audiograms dated from 1986 to
2003. A March 17, 2003 employing establishment audiogram revealed findings for the right ear
of 15, 15, 0 and 70 decibels at the respective frequencies of 500, 1,000, 2,000 and 3,000 Hertz
(Hz), and for the left ear, 10, 10, 15 and 75 decibels.
OWCP prepared an August 3, 2012 statement of accepted facts which related that
appellant was exposed to loud noise from 1980 to 2006 at the employing establishment due to
noise from grinders, ventilation fans, ovens, sandblasters, test equipment, cranes, air hoists,
electric hoists, air hoses and forklifts.
On August 3, 2012 OWCP requested a supplemental opinion from Dr. Randolph as to
whether appellant’s industrial noise exposure caused, aggravated or accelerated his hearing loss.
In an August 27, 2012 addendum report, Dr. Randolph related that the earliest audiogram
present in the record was dated March 27, 1980. It revealed a very significant bilateral high tone
sensorineural hearing loss compatible with noise exposure preceding his employment; however,
the degree of hearing loss was zero percent. Responding to the question as to whether
appellant’s current hearing loss exceeded what would be normally predicted on the basis of
presbycusis, Dr. Randolph responded that appellant left his employment in 2006, and
audiograms were not of record performed at or near the time he left his employment. The most
recent audiogram of record was dated March 17, 2003, which showed hearing loss had increased
in severity at 3,000 cycles, suggesting that the hearing loss had been aggravated by noise
exposure since March 1980. The hearing loss was in excess of what would normally be
predicated on the basis of presbycusis. Between 2003 and the February 29, 2012 audiogram,
appellant developed a bilateral mixed-type hearing loss with a conductive component not due to
industrial noise exposure. Subtracting the conductive component of appellant’s hearing loss, he
had a sensorineural component to his hearing loss ratable at 18.75 percent in the right ear, 11.25
percent in the left ear, with a binaural hearing loss ratable at 12.5 percent, potentially due to past
industrial noise exposure. Dr. Randolph concluded that the hearing loss was far in excess of
what would normally be predicted on the basis of presbycusis. Appellant had evidence of
eustachian tube dysfunction on tympanogram in the left ear suggesting that tymphanic membrane
motility was not entirely normal on the left side. There was no indication of any medical
condition such as acoustic neuroma or Meniere’s disease. The high tone component to
appellant’s hearing loss had an audiometric configuration compatible with significant past noise
exposure.
OWCP forwarded appellant’s case to the district medical adviser for assessment of the
percentage of permanent hearing loss. In a September 13, 2012 report, he stated that the
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audiogram that best represented work-related exposure to noise prior to appellant’s 2006
retirement was the March 17, 2003 audiogram. It showed a pattern of high tone sensorineural
hearing loss consistent with hearing loss due to workplace noise exposure. The February 29,
2012 audiogram showed a very substantial decline in hearing since 2003 with a new pattern of
bilateral mixed-type hearing loss with a conductive component in both ears, which was not due
to industrial noise exposure. Relying on the March 17, 2003 audiogram, in accordance with the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides), the district medical adviser determined that appellant had a four
percent monaural hearing loss to the left ear and that the date of maximum medical improvement
was March 17, 2003.
In its September 25, 2012 decision, OWCP accepted appellant’s claim of bilateral noiseinduced hearing loss.
In its February 6, 2013 decision, OWCP granted appellant a schedule award for four
percent hearing loss in the left ear which covered 2.08 weeks from October 5 to 19, 2006.
LEGAL PRECEDENT
The schedule award provision of FECA2 provides compensation to employees sustaining
permanent loss or loss of use, of specified members of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such a determination is a matter which results in the sound discretion of OWCP.
For consistent results and to ensure equal justice, the Board has authorized the use of a single set
of tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged.5 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.7 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
2

5 U.S.C. §§ 8101-8193.

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

A.M.A., Guides 250.

5

Id.

6

Id.

7

Id.

8

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

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Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.9
ANALYSIS
The Board finds that the case is not in posture for decision.
The evidence supports that appellant sustained hearing loss and was routinely exposed to
loud noise at the workplace generated by industrial equipment and machinery from 1980 until his
retirement in 2006. OWCP has therefore properly accepted appellant’s claim for bilateral
hearing loss.
The case is not in posture for decision as to the degree of hearing loss causally related to
appellant’s employment. The Board finds that a conflict exists in the medical opinion evidence
as to whether appellant has greater than a four percent hearing loss in his left ear, causally related
to his federal employment.
In his August 27, 2012 report, Dr. Randolph, appellant’s treating physician, stated that
the March 17, 2003 audiogram revealed a significant bilateral hearing loss. He remarked that
while the conductive component of appellant’s hearing loss was not due to industrial noise
exposure, the hearing loss was far in excess of which would normally be predicted on the basis
of presbycusis. Dr. Randolph concluded that the workplace exposure was of sufficient intensity
and duration to have aggravated appellant’s preexisting sensorineural hearing loss, to cause an
18.75 percent loss in the right ear and an 11.25 percent loss in the left ear.
The district medical adviser noted in his September 13, 2012 report that the February 29,
2012 audiogram revealed a sudden decline in hearing since 2003, not all of which was due to
industrial noise exposure. He then relied on the March 17, 2003 audiogram to calculate
appellant’s employment-related hearing loss as four percent hearing loss of the left ear.
Appellant did not stop working until 2006 and continued to be exposed to industrial noise
after the March 17, 2003 audiogram. Dr. Randolph opined that his hearing continued to
deteriorate due to his previous employment exposure. Therefore, he used the 2012 audiogram to
rate appellant’s hearing loss. The Board has held that it is not necessary to prove a significant
contribution of employment factors to a condition for the purpose of establishing causal
relationship.10 The Board explained in Adelbert E. Buzzell,11 that OWCP’s medical adviser was
under the mistaken belief that in Kenneth W. Morgan,12 the Board held that a noise-induced
sensorineural hearing loss does not progress after exposure to hazardous occupational noise
ceases. In Morgan, the Board did not enunciate a general rule or policy statement.13 The Board
9

5 U.S.C. § 8123(a); see also Charles E. Burke, 47 ECAB 185 (1985).

10

See Kathleen M. Fava, 49 ECAB 519 (1998); Beth P. Chaput, 37 ECAB 158 (1985).

11

34 ECAB 96 (1982).

12

28 ECAB 569 (1977).

13

See H.H., Docket No. 11-938 (issued December 23, 2011).

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has emphasized that it does not take positions on medical questions of general application, but
instead relied upon the medical evidence submitted in each case.14
The Board finds that a conflict exists in the medical opinion evidence as to whether
appellant’s employment-related hearing loss progressed after 2003. The Board will remand the
case for referral to an impartial medical specialist for resolution of the conflict in the medical
opinion evidence. After such further development as OWCP deems necessary, it shall issue a de
novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
sustained greater than four percent hearing loss in the left ear.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: August 15, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

14

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARMENT OF THE ARMY, ARMY
NATIONAL GUARD, Fort Dix, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0877
Issued: August 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 12, 2020 appellant, through counsel, filed a timely appeal from a September 23,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence to the Board on appeal. However, the Board’s Rules of Procedures
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.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 30, 2019, as he no longer had residuals or
disability causally related to his accepted May 14, 1999 employment injury.
FACTUAL HISTORY
On May 15, 1998 appellant, then a 29-year-old heavy mobile equipment repairer, filed a
traumatic injury claim (Form CA-1) alleging that on May 14, 1998 he sustained an injury when he
was breaking down tires while in the performance of duty. OWCP accepted his claim for chest
contusion, cervical and thoracic sprains, tendinitis, bursitis, and internal derangement of the right
shoulder.
It authorized right shoulder acromioplasty surgery that was performed on
October 12, 1998. Appellant stopped work on the date of injury and OWCP paid him
compensation for disability from work.
In September 26 and 28, 2017 reports, Dr. Mark Reiner, an attending osteopath
Board-certified in orthopedic surgery, opined that employment-related chronic pain in appellant’s
right shoulder girdle/arm, as well as employment-related cervical problems, rendered appellant
totally disabled from work. In a January 18, 2018 report, Dr. Andrew Newman, a Board-certified
orthopedic surgeon, serving as an OWCP referral physician, determined that appellant’s May 14,
1998 employment injury had resolved and opined that an employment-related condition did not
prevent appellant from returning to modified-duty work.
OWCP determined that there was a conflict in the medical opinion evidence regarding
employment-related residuals and disability and referred appellant and the case record to
Dr. Ian Blair Fries, a Board-certified orthopedic surgeon, for an impartial medical examination and
opinion on the matter. In a report dated April 29, 2018, Dr. Fries discussed appellant’s factual and
medical history and reported physical examination findings. He opined that appellant did not have
the clear objective findings expected if he had a serious right upper extremity neurological disorder
present for about two decades. Dr. Fries indicated that appellant did not have any measurable
residuals of injuries sustained or accepted in a work-related May 14, 1998 employment injury. He
did note a history of cerebrovascular accidents, but indicated that he had not been provided with
sufficient documentation to assess this condition and determine if it was responsible for some or
all of appellant’s right upper extremity complaints. Dr. Fries noted that appellant’s 1998 right
shoulder surgery identified neither tendinitis nor bursitis and indicated that the only findings were
a Type II acromion, a developmental condition, and impingement. He opined that there was no
support for a firm diagnosis other than symptom magnification or malingering as some physicians
had suggested. Dr. Fries opined that appellant’s accepted conditions had resolved and found that
appellant was able to return to regular duty, noting that he should have returned to full duty in
early 1999.
In an August 17, 2018 letter, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits as he no longer had residuals or disability causally
related to his accepted May 14, 1998 employment injury. It indicated that the special weight of
the medical opinion evidence with respect to this matter rested with the opinion of Dr. Fries, the
impartial medical examiner. OWCP provided appellant 30 days to submit evidence or argument

2

challenging the proposed termination action. In response, appellant argued that Dr. Fries’ opinion
was insufficiently well rationalized to constitute the special weight of the medical evidence.
In response to an October 23, 2018 request from OWCP for clarification of his opinion,
Dr. Fries provided an October 29, 2018 report in which he indicated that appellant had been
diagnosed with right shoulder impingement prior to his 1998 surgery, but that he no longer had
that diagnosis. He opined that appellant’s right shoulder impingement was relieved by the 1998
surgery. Dr. Fries indicated that, therefore, the only residual diagnosis that might be considered
due to appellant’s May 14, 1998 employment injury was mild adhesive capsulitis of the right
shoulder. He noted, “This diagnosis is compatible with return to work.” Dr. Fries indicated that
he could not determine how much of appellant’s limited right shoulder motion was due to adhesive
capsulitis and how much was voluntary limitation. He noted that no such limitation was
documented at the time of the 1998 surgery and found that “[v]oluntary exaggeration is clearly a
concern raised by others as well by me.” With respect to the fact that appellant had less grip
strength on the right side, Dr. Fries asserted that appellant voluntarily influenced the result. He
further cited the lack of appellant’s forearm atrophy, and found that “at most [appellant] has slight
disability.”
By decision dated April 29, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective April 30, 2019, as he no longer had residuals or disability causally
related to his accepted May 14, 1998 employment injury.
Appellant, through counsel, requested a hearing before a representative of OWCP’s Branch
of Hearings and Review. During the oral hearing held on August 21, 2019, counsel argued that
Dr. Fries’ opinion was insufficient to constitute the special weight of the medical evidence. By
decision dated September 23, 2019, OWCP’s hearing representative affirmed the April 29, 2019
decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6

4

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
6

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

3

The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 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.8
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”9 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well-rationalized and based upon a proper factual background, must be
given special weight.10
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 30, 2019.
OWCP properly determined that there was a conflict in the medical opinion evidence
regarding employment-related residuals/disability and referred appellant, pursuant to section
8123(a) of FECA (5 U.S.C. § 8123(a)), to Dr. Fries for an impartial medical examination and an
opinion on the matter. The Board finds, however, that Dr. Fries’ opinion on employment-related
residuals/disability is not sufficiently rationalized to constitute the special weight of the medical
opinion evidence.11
The Board finds that Dr. Fries’ opinion on employment-related residuals/disability,
expressed in his April 29 and October 29, 2018 reports, is of limited probative value because he
did not provide adequate medical rationale explaining why all of appellant’s accepted conditions
had resolved, particularly with regard to the right shoulder. In fact, Dr. Fries suggested in his
October 29, 2018 report that appellant continued to have an employment-related right shoulder
condition. He indicated in that report that the only residual diagnosis that might be considered due
to appellant’s employment injury was mild adhesive capsulitis of the right shoulder. In addition,
Dr. Fries opined in his April 29, 2018 report that appellant’s accepted conditions had resolved and
found that appellant was able to return to regular duty, noting that he should have returned to full
duty in early 1999. However, he did not adequately explain the medical process through which
appellant’s accepted conditions would have resolved at that time. Moreover, Dr. Fries provided a
contradictory opinion on his October 29, 2018 report when he noted that “[a]t most [appellant] has
7

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
8

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

9

5 U.S.C. § 8123(a).

10

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
11

See supra notes 8 and 9.

4

slight disability.” The Board has held that a report is of limited probative value regarding a given
medical matter if it does not contain medical rationale explaining that matter.12 The Board,
therefore, finds that Dr. Fries’ reports are insufficient to meet OWCP’s burden of proof to
terminate appellant’s wage-loss compensation and medical benefits.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 30, 2019.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 2, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, U.S. PRISON BIG SANDY, Inez, KY,
Employer
__________________________________________

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Docket No. 17-1529
Issued: February 14, 2018

Appearances:
Kenneth C. Smith, III., Esq., for the appellant1
Office of Solicitor, for the Director

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 3, 2017 appellant, through counsel, filed a timely appeal from February 15 and
June 14, 2017 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.

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 appellant established an emotional condition in the performance of
duty.
FACTUAL HISTORY
On October 10, 2016 appellant, then a 33-year-old corrections officer, filed an
occupational disease claim (Form CA-2) alleging a stress-related condition. He indicated that on
October 7, 2016 he became dizzy and went to the medical department at work where a nurse
found elevated blood pressure and noted that appellant had difficulty talking. Appellant was
then transported to a hospital. He did not return.3
In support of his claim, appellant submitted an emergency department report dated
October 7, 2016 which noted that he was admitted at 11:46 a.m. and discharged at 4:48 p.m. that
day. The report did not contain a diagnosis. Dr. John Garner, appellant’s attending family
physician, submitted treatment notes dated October 4 to 24, 2016. He noted a history of extreme
stress at work and diagnosed hypertension and an anxiety state. Dr. Garner advised that
appellant could not work.
By letter dated October 27, 2016, OWCP informed appellant of the evidence needed to
establish his claim. By separate letter of the same date, it requested that the employing
establishment respond to appellant’s claim and provide comments from a knowledgeable
supervisor regarding the claim’s accuracy.
In undated statements, appellant indicated that after being assigned to a Special
Operations Response Team (SORT) in 2011 he was subjected to hazing and was physically and
sexually abused by team members. He related that this continued until October 2014, when he
was no longer allowed inside the prison itself, and was assigned to its business office. Appellant
indicated that he reported the events and an investigation was done by the Office of Inspector
General (OIG) who recommended termination of individuals implicated in extreme hazing of
appellant. He related that he was placed on administrative leave in 2015, and beginning in
October that year was assigned near another officer who, appellant alleged, had been convicted
of assaulting him, and constantly harassed him. Appellant reported that his allegations had been
substantiated, but that the harassment continued to present. He also noted that he had filed an
Equal Employment Opportunity (EEO) claim, but that its findings were confidential.
In a fitness-for-duty evaluation dated October 16, 2014, Brandon R. Olive, Ph.D., a
licensed clinical psychologist, diagnosed post-traumatic stress disorder and advised that it was
caused by severe hazing and bullying by coworkers.

3

The record indicates that appellant files other claims before OWCP, including two accepted traumatic injury
claims, adjudicated under OWCP File Nos. xxxxxx673 and xxxxxx759, a traumatic injury claim that has not been
accepted, adjudicated under File No. xxxxxx511, and an extended occupational disease claim that has not been
accepted, adjudicated under File No. xxxxxx649. These other claims are not presently before the Board. The
instant claim was adjudicated by OWCP under File No. xxxxxx157.

2

Appellant submitted a personal affidavit dated May 7, 2015 in which he alleged that
S.W., a coworker, threw a large piece of concrete onto his car. A June 12, 2015 Kentucky State
Police uniform citation cited B.W., a coworker, for criminal mischief.4 An August 2, 2016
memorandum from appellant to Captain F.G. outlined appellant’s concerns regarding ongoing
investigations and past practices. He explained that stress at work kept him from completing an
assigned duty.
Appellant also forwarded additional treatment notes from Dr. Garner dated October 3,
2014 to June 9, 2015. On November 18, 2016 Dr. Garner related that he had been following
appellant for over three years, noting that his blood pressure was dangerously high and his
anxiety levels were out of control. He opined that appellant should not work at his present
environment.
Dr. Kevin B. Johnson, an osteopath, provided a November 14, 2016 treatment note. He
reported a history of sexual, mental, and physical abuse by fellow officers. Dr. Johnson
diagnosed anxiety and advised that appellant be permanently removed from his current work
environment.
In November 18, 2016 correspondence, L.M., one of appellant’s supervisors, advised that
appellant had suffered physical and mental damage at work, noting specific events of harassment
by SORT team members. These included that he reported to a threat assessment committee that
another staff member threatened to knife appellant for reporting wrongdoing against the SORT
team. L.M. indicated that appellant had been placed directly into a hostile work environment in
the business office where he was expected to work daily in close proximity to the same people
who had physically and sexually assaulted him. He indicated that appellant continued to be
harassed daily by coworkers. L.M. noted that he had witnessed appellant’s condition worsen
over 2.5 years. He concluded that each thing appellant reported had been confirmed as true by
the OIG and the Federal Bureau of Investigation (FBI).
In January 3, 2017 correspondence, an employing establishment human resources
manager indicated that appellant had been part of an intense investigation involving many
coworkers and was temporarily assigned to the administration building where he listened to
inmate telephone calls and reviewed inmate e-mails. She attached a position description for a
correctional officer position.
By letter dated January 8, 2017, OWCP asked the employing establishment to furnish a
copy of the OIG investigation report. A telephone memorandum dated January 13, 2017,
indicated that the employing establishment would forward a redacted copy of this investigation.5
By decision dated February 15, 2017, OWCP denied the claim. It found that the evidence
of record was insufficient to establish that the events occurred as alleged, noting that appellant
had not submitted any evidence proving his allegations.
4

It is unclear from the record if S.W. and B.W., who share the same last name, are the same individual.

5
The record includes complaints in opposition to the employing establishment’s motion for findings and
conclusions without a hearing, filed with the EEO Commission’s Indianapolis district office.

3

On February 16, 2017 the employing establishment forwarded a March 12, 2015 OIG
report which indicated charges brought by appellant against a lieutenant for failure to report a
violation of rules and regulations were sustained and that charges brought by appellant against a
correction officer for unprofessional conduct were also sustained. These charges were in relation
to threats made to appellant and for a rock thrown on his vehicle.
On April 4, 2017 counsel requested reconsideration. In a March 29, 2017 letter, he
asserted that appellant had been the victim of repeated retaliation for reporting unprofessional
behavior, including physical violence. Counsel maintained that this was substantiated by sworn
affidavits and sworn deposition testimony, copies of which were said to be attached. The only
items attached to the March 29, 2017 letter, however, were copies of two photographs. No
affidavits or deposition transcripts are found in the case record.
Appellant retired on disability in the spring of 2017.
In a June 14, 2017 decision, OWCP denied modification of its February 16, 2017
decision. It noted that, while appellant claimed that working in a front lobby post, which
included screening staff and answering telephones, caused his emotional condition and anxiety
attack on October 7, 2016, he failed to submit any evidence proving these allegations. OWCP
further noted that appellant had a previous claim that had been denied, filed on October 23, 2014
and adjudicated under File No. xxxxxx649, in which appellant claimed the same physical and
sexual abuse. It advised him to follow his appeal rights in that case. OWCP further noted that
counsel’s reconsideration request did not differentiate current events from events claimed under
File No. xxxxxx649. It concluded that the evidence submitted was insufficient to alter its prior
decision in this case, adjudicated under the present claim, File No. xxxxxx157.
LEGAL PRECEDENT
To establish a claim for a stress-related condition in the performance of duty, the
appellant must submit the following: (1) medical evidence establishing an emotional or stressrelated disorder; (2) factual evidence identifying employment factors or incidents alleged to have
caused or contributed the claimed condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
stress-related condition.6 If a claimant does implicate a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor.7 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.8
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,9 the Board
6

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

7

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

8

Id.

9

28 ECAB 125 (1976).

4

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.10 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 his or her emotional reaction to a special assignment or other requirements imposed
by the employing establishment or by the nature of the work.11 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.12 Where a claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.13 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.14
ANALYSIS
The Board finds that this case is not in posture for decision. When disability results from
an emotional reaction to regular or specially assigned work duties, or a requirement imposed by
the employment, the disability is deemed compensable.15
In this instance, appellant alleged that from 2011 to October 7, 2016 he had been
subjected to harassment at the employing establishment. He maintained that this began with
severe hazing, and sexual and physical abuse. Appellant noted that, beginning in October 2015,
he was placed near coworkers who had been implicated in investigations of these past events,
and this made his daily work of answering the telephone and screening e-mails more difficult
such that he had a panic attack on October 7, 2016 and stopped work. He referenced an OIG
investigation and an EEO claim.
In reaching its June 14, 2017 decision in the present claim, File No. xxxxxx157, OWCP
referenced a decision in appellant’s October 2014 claim under File No. xxxxxx649.
Pursuant to 20 C.F.R. § 501.2(c)(1), 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. Decisions on
claims are based on the written record, which may include forms, reports, letters, and other
evidence of various types such as photographs, videotapes, or drawings.16 Evidence may not be
10

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

11

Supra note 9.

12

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

13

M.D., 59 ECAB 211 (2007).

14

Roger Williams, 52 ECAB 468 (2001).

15

Penelope C. Owens, 54 ECAB 684 (2003); see supra note 9.

16
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).

5

incorporated by reference, nor may evidence from another claimant’s case file be used.17
Evidence contained in another of the claimant’s case files may be used, but a copy of that
evidence should be placed into the case file being adjudicated.18 All evidence that forms the
basis of a decision must be in that claimant’s case record.19 As OWCP referenced a decision in
File No. xxxxxx649, a copy of that decision and evidence upon which it relied should be placed
in this case record, File No. xxxxxx157.
The Board also notes that OWCP did not address whether the incidents cited by appellant
constituted compensable employment factors or were administrative or personnel matters.
OWCP procedures provide that, when denying an emotional condition claim, the claims
examiner must first determine whether the situations alleged actually existed or occurred. The
claims examiner should then distinguish between those workplace activities and circumstances
which are factors of employment and those which are outside the scope of employment for
purposes of compensation by outlining work-related and nonwork-related elements into three
parts. These should be labeled as accepted events that are factors of employment, accepted
events that are not factors of employment, and incidents alleged which OWCP finds did not
occur.20
Moreover, L.M.’s statement supports some of appellant’s allegations, as does the OIG
report. He noted on November 18, 2016 that another staff member threatened to knife appellant
for reporting wrongdoing against the SORT team, and that appellant had been placed directly
into a hostile work environment in the business office where he was expected to work daily in
close proximity to the same people who physically and sexually assaulted him, and that appellant
continued to be harassed daily by coworkers. L.M. concluded that each thing appellant reported
had been confirmed as true by the OIG and the FBI. The March 12, 2015 OIG report indicated
that charges were sustained in relation to threats made to appellant and for a rock thrown on his
vehicle.
The Board further notes that counsel indicated that he had forwarded affidavits and
deposition testimony with his April 4, 2017 reconsideration. These were not found in the case
record of OWCP File No. xxxxxx157 at issue here. Upon remand OWCP should ascertain if
these were misfiled and should ask appellant, counsel, and the employing establishment to
furnish any evidence relating to his EEO claims, or other investigatory proceedings, if relevant to
establishing error and abuse on the part of the employing establishment.
Since the record lacks sufficient evidence for the Board to render an informed decision,
the case shall be remanded to OWCP for further development. As noted, all evidence that forms
the basis of a decision must be included in the case record.21 After OWCP has developed the
17

Id.

18

Id.

19

Id.

20

Id. at Chapter 2.1401.6 (November 2012).

21

Supra note 16.

6

record consistent with the above-noted directive, it shall issue a de novo decision regarding
appellant’s claim for an employment-related emotional condition.22
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 14 and February 15, 2017 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for
further proceedings consistent with this opinion of the Board.
Issued: February 14, 2018
Washington, DC

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

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

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

22

See J.B., Docket No. 17-1356 (issued October 4, 2017).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
U.S. POSTAL SERVICE, STATISTICAL
PROGRAMS, Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 12-1618
Issued: January 18, 2013

Case Submitted on the Record

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

JURISDICTION
On July 25, 2012 appellant, through counsel, filed a timely appeal from a June 26, 2012
decision of the Office of Workers’ Compensation Programs (OWCP) concerning the termination
of her monetary compensation based on her refusal of suitable work. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s monetary compensation
effective January 30, 2012 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On August 21, 2001 appellant, then a 41-year-old data collections technician, injured her
back while leaning over and reaching for a tray of mail. She stopped work on August 22, 2001
1

5 U.S.C. § 8101 et seq.

and returned to part-time limited-duty work on August 12, 2002. OWCP accepted the claim for
lumbar strain, an L3-4 herniated disc and enthesopathy of the hip region and authorized an
exploratory L3-4 lumbar decompression/discectomy surgery and fusion, which was performed
on June 3, 2003. It accepted appellant’s September 30, 2002 and June 25, 2007 recurrence
claims. Appellant returned to part-time limited-duty work on August 9, 2010 and stopped work
on March 28, 2011.
In a September 20, 2011 report, Dr. Daniel T. Altman a second opinion Board-certified
orthopedic surgeon, reviewed the medical evidence, history of injury and set forth findings on
physical examination. He diagnosed an L3-4 herniated disc requiring multiple surgeries and
fusion. Dr. Altman noted that a spinal cord stimulator was not unreasonable. As to appellant’s
work capability, he found that she could work four hours a day with restrictions. The restrictions
set by Dr. Altman included no lifting more than five pounds, frequent change position,
occasional bending and sitting and walking restrictions.
On November 15, 2011 the employing establishment offered appellant the modified
position of data collection technician/clerk working four hours a day. The duties of the position
were described as “Combo Primary.” Under the section for physical restrictions, the employing
establishment noted limited standing and sitting as necessary and minimal up to 10 pounds
lifting. On December 8, 2011 the employing establishment reoffered the position to appellant
with the lifting requirement reduced to five pounds based on the restrictions set by Dr. Altman.
Under section labeled Part IV Documentation of the job offer, it noted that as she had reached
maximum medical improvement (MMI), but had not gone through the National Reassessment
Process (NRP), the job offer was “an interim assignment until” reassessment “under the NRP
Phase 2 MMI process.” Under Part IV of the December 8, 2011 job offer, the employing
establishment stated that “if necessary work is not available on any day” she would be asked to
complete a form for the hours not worked.
By letter dated December 16, 2011, OWCP advised appellant of its determination that the
modified data collection technician/clerk position offered by the employing establishment was
suitable. It noted that the position was based upon the opinion of Dr. Altman who stated that
appellant was capable of working part time with restrictions. OWCP noted that he also
concurred with her treating physician that a spinal cord stimulator would be beneficial. It
informed appellant that her monetary compensation would be terminated if she did not accept the
position or provide good cause for not doing so within 30 days. Appellant did not respond.
In a January 31, 2012 decision, OWCP terminated appellant’s compensation effective
January 30, 2012 on the grounds that she refused an offer of suitable work. It noted that she did
not respond to the December 16, 2011 letter or provide any reasons as to why she was refusing
the offered position.
By letter dated February 6, 2012, counsel requested a telephonic hearing with an OWCP
hearing representative, which occurred on May 8, 2012.
In a February 27, 2012 report, Dr. Shelana Gibbs-McElvy, a treating Board-certified
physiatrist, provided physical findings, diagnosed failed laminectomy syndrome and

2

recommended a neurostimulator trial.
She stated that if appellant has a successful
neurostimulator trial, then it would be appropriate for her to return to work.
In a June 26, 2012 decision, OWCP’s hearing representative affirmed OWCP’s
January 31, 2012 decision finding that appellant had refused an offer of suitable work.2
LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for him is not entitled to compensation.3 Once OWCP accepts a claim, it has the burden
of justifying termination or modification of compensation benefits under section 8106(c) for
refusing to accept or neglecting to perform suitable work.4 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.5 To justify termination, OWCP
must show that the work offered was suitable and that appellant was informed of the
consequences of her refusal to accept such employment.6 According to OWCP procedure, a job
offer must be in writing and contain a description of the duties to be performed and the specific
physical requirements of the position.7 Section 10.516 of the Code of Federal Regulations8
provides that an employee who refuses or neglects to work after suitable work has been offered
or secured for the employee has the burden of showing that such refusal or failure to work was
reasonable or justified, and shall be provided with the opportunity to make such showing before
a determination is made with respect to termination of entitlement to compensation.9
ANALYSIS
OWCP accepted that appellant sustained L3-4 herniated disc and enthesopathy of the hip
region as the result of her accepted August 21, 2001 employment injury and authorized back
surgery. Appellant was offered the modified job of data collection technician/clerk by the
2

The Board notes that, following the June 26, 2012 hearing representative’s decision, OWCP received additional
evidence. However, the Board may only review evidence that was in the record at the time OWCP issued its final
decision. See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293
(2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB
373 (2003).
3

5 U.S.C. § 8106(c)(2).

4

Howard Y. Miyashiro, 51 ECAB 253 (1999).

5

H. Adrian Osborne, 48 ECAB 556 (1997).

6

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(a) (July 1997).
8

20 C.F.R. § 10.516.

9

See Camillo R. DeArcangelis, 42 ECAB 941 (1991).

3

employing establishment on November 15 and December 8, 2011. By letter dated December 16,
2011, OWCP advised her of its determination that the modified data collection technician/clerk
position offered by the employing establishment was suitable. Appellant did not respond to
OWCP’s December 16, 2011 letter or accept the offered position. By decision dated January 31,
2012 decision, OWCP terminated her compensation on the grounds that she refused an offer of
suitable work. As appellant did not respond to the December 16, 2011 notification, OWCP
complied with its procedural requirements when issuing its decision on January 31, 2012.10
On November 15, 2011 the employing establishment offered appellant the modified
position of data collection technician/clerk working four hours a day with restrictions including
no lifting more than 10 pounds. On December 8, 2011 it reoffered her the modified position, but
reduced the lifting restriction to five pounds. The duties of the position in both the November 15
and December 8, 2011 job offers were listed as “Combo Primary.” No description of the
position or the job duties were provided by the employing establishment. The record contains no
information or description as to what duties are encompassed under “Combo Primary.”
OWCP procedures provide that any offer of modified duty must include a description of
the duties to be performed.11 This information was not included in the employing
establishment’s November 15 and December 8, 2011 job offers to appellant of the data collection
technician/clerk. There is no evidence to show that OWCP attempted to obtain a description of
the job duties for the offered position.
The Board must also consider the kind of appointment in determining whether the offered
position is suitable. It is unclear from a review of the November 15 and December 8, 2011 job
offers whether the job offered was intended to be permanent or temporary. Under the section
labeled Part IV Documentation of the November 15, 2011 job offer, the employing establishment
indicated that the job offer was an interim assignment until appellant was reassessed under the
NRP process. The December 8, 2011 job offer noted that if work was not available for appellant
would be required to complete a form for the hours not worked. The record is devoid of any
evidence that OWCP requested clarification from the employing establishment as to whether the
position was temporary based on the information provided in section IV of the job offers. These
procedural errors are sufficient to reverse OWCP’s determination that appellant refused an offer
of suitable work.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to establish that appellant
refused an offer of suitable work.

10

See Gayle Harris, 52 ECAB 319 (2001).

11

Supra note 7 at Chapter 2.814.4(a)(1) (July 1997).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 26, 2012 is reversed.
Issued: January 18, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF THE ARMY, FORT
HAMILTON, DEPARTMENT OF PUBLIC
WORKS, Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0222
Issued: November 17, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 10, 2020 appellant, through counsel, filed a timely appeal from a June 23,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to

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

The Board notes that appellant submitted additional evidence on appeal. 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.

the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 9, 2015, as he no longer had disability
or residuals causally related to the accepted December 9, 2013 employment injury; and (2) whether
appellant has met his burden of proof to establish continuing disability or residuals causally related
to his accepted December 9, 2013 employment injury on or after February 9, 2015.
FACTUAL HISTORY
On December 18, 2013 appellant, then a 57-year-old general engineer, filed a traumatic
injury claim (Form CA-1) alleging that on December 9, 2013 he injured his back, coccyx, head,
right arm, and right leg when he slipped down a flight of steps while in the performance of duty.
He stopped work on December 9, 2013. On February 3, 2014 OWCP accepted the claim for
lumbar sprain, sprain of the right leg and knee, cracked tooth, loss of teeth due to tr auma, and
extraction.
On February 4, 2014 appellant underwent a lumbar magnetic resonance imaging (MRI)
scan which demonstrated multilevel degenerative disc changes in the lumbar spine,
spondylolisthesis L2-3 with bilateral facet joint hypertrophic arthropathy and moderate central
canal stenosis, slight retrolisthesis of L4 with respect to L5, annual bulge L4 -5 abutting the right
L5 nerve root, superimposed left lateral/foraminal disc herniation at L4-5, and mild bulging of the
annulus at L5-S1.
On April 2, 2014 appellant underwent electromyogram and nerve conduction velocity
(EMG/NCV) studies which were normal with no evidence of radiculopathy.
In a report dated July 1, 2014, Dr. Dean T. Filion, an osteopath, examined appellant due to
his December 9, 2013 employment injury and noted that he was “very dramatic” and had difficulty
with functional mobility. He noted that appellant reported diffuse pain across the low back with
occasional radiation into his legs, but that his EMG/NCV was unremarkable. Dr. Filion found that
his neurologic examination revealed patchy diminished sensation which did not follow any
dermatomal pattern. He also noted that appellant had no obvious weakness in motor strength, but
reported numbness when performing toe raises. Dr. Filion diagnosed L4-5 herniated disc, lumbar
degenerative disc disease, lumbar degenerative joint disease, and lumbar stenosis. He found that
appellant was unable to return to work and referred him for surgical evaluation. Dr. Filion noted
that he exhibited Waddell signs with low back pain with axial cervical compression and less so
with truncal twisting which was indicative of a nonorganic pain pattern. He discharged appellant
from care.
On July 3, 2014 Dr. Stanley Knep, a Board-certified neurologist, noted appellant’s history
of injury and diagnosed degeneration of the thoracic or thoracolumbar intervertebral disc,
3

5 U.S.C. § 8101 et seq.

2

degeneration of lumbar or lumbosacral intervertebral disc, and lumbosacral root lesions . He
reported that appellant was experiencing severe thoracic and lumbar pain with radiation down the
right leg in the L5 distribution, likely secondary to the herniated disc at L4 -5.
In an August 27, 2014 note, Dr. Knep diagnosed lumbosacral root lesion, degeneration of
thoracic or thoracolumbar intervertebral disc, and headache. He found slight weakness of the L5
innervated muscles with impaired sensation that correlated to the herniated disc at L4-5.
On August 5, 2014 OWCP referred appellant, a statement of accepted facts (SOAF), and a
series of questions to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for a second opinion
examination.
In his August 15, 2014 report, Dr. Lakin reviewed the SOAF as well as medical records
and performed a physical examination. He found that appellant’s motor examination was normal
in the bilateral upper extremities while his thoracic and lumbosacral spine revealed minimal
tenderness in the paravertebral midline and musculature. Dr. Lakin reported that sensation was
decreased in the entire right lower extremity as compared to the left while appellant’s motor
examination in the lower extremities was normal. He diagnosed lumbosacral sprain and sprain of
the right leg. Dr. Lakin found that his examination of appellant’s right knee was unremarkable
and that examination of the lumbosacral spine did not follow any anatomic patterns. He
determined that appellant had no employment-related disability as there was no correlation of
subjective and objective complaints. Dr. Lakin noted that EMG/NCV testing of the lower
extremities was normal. He found that appellant had reached maximum medical improvement
(MMI), no longer required further medical treatment, and could return to his date-of-injury
position without restrictions.
On September 15, 2014 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on Dr. Lakin’s report. It afforded him 30 days to respond in writing if
he disagreed with the proposed termination.
In a September 4, 2014 report, Dr. Arash Emami, a Board-certified orthopedic surgeon,
noted appellant’s fall on December 9, 2013 that resulted in a lumbar spine injury. On physical
examination, he found mild paraspinal spasms, sensation grossly intact, and present and equal
reflexes. Dr. Emami reviewed appellant’s MRI scan and found lumbar disc herniation at L4-5
with impingement of the L5 nerve root. He recommended a lumbar laminectomy, foraminotomy
at L4-5 and discectomy at L4-5. Dr. Emami found that appellant was totally disabled from work.
In a letter dated October 27, 2014, appellant, through counsel, objected to the proposed
termination of wage-loss and medical benefits.
On October 28, 2014 OWCP requested a supplemental report from Dr. Lakin addressing
whether the acceptance of appellant’s claim should be expanded to include other medical
conditions and whether the findings on the MRI scan were due to his accepted employment injury.
In a January 28, 2015 report, Dr. Lakin opined that the findings on the MRI scan were
degenerative age-related changes which preexisted appellant’s accepted employment injury. He
further noted that appellant’s subjective and objective findings did not correlate based on his
physical examination. Dr. Lakin found that appellant had no objective signs of radiculopathy on
3

examination or from EMG/NCV testing which did not correlate with the MRI scan findings. He
concluded that appellant had no disability from work and there was no need for further medical
treatment.
By decision dated February 25, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective February 9, 2015, based on the reports from
Dr. Lakin. On March 4, 2015 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
A hearing was held on October 16, 2015.
In a report and treatment notes dated November 4, 2015, Dr. Ki Soo Hwang, a Boardcertified orthopedic surgeon, noted appellant’s history of falling in the performance of duty. He
performed a physical examination and diagnosed lumbar spinal stenosis with right lower extremity
radiculopathy. Dr. Hwang noted that appellant’s lower back pain with radiculopathy began shortly
after his fall in 2013. He opined that the slip and fall injury was the direct cause of his debilitating
pain. Dr. Hwang recommended spine surgery.
By decision dated January 28, 2016, OWCP’s hearing representative affirmed the
February 25, 2015 termination decision and found that appellant had not established continuing
disability or residuals causally related to his accepted employment injury.
On March 3, 2016 appellant, through counsel, requested reconsideration of the January 28,
2016 decision. Counsel provided a February 18, 2016 report from Dr. Emami, who reviewed
Dr. Lakin’s reports and disagreed with his conclusions. Dr. Emami opined that, while appellant’s
MRI scan findings of stenosis and retrolisthesis could be a preexisting condition, the disc
herniation at L4-5 would be most likely as a result of the work-related accident. He recommended
spine surgery.
By decision dated May 31, 2016, OWCP denied modification of its prior decisions.
On June 7, 2016 appellant, through counsel, requested reconsideration.
By decision dated June 23, 2020, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

4

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

employment. 5 OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 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. 8
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.9 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 10 In situations where there exist opposing reports of
virtually equal weight and rationale and the case is referred to an impartial medical specialist for
the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight. 11
ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective February 9, 2015.
The evidence of record establishes that, as of February 9, 2015, the date OWCP terminated
appellant’s wage-loss compensation and medical benefits, there was disagreement between
Dr. Lakin, OWCP’s second opinion physician, and Dr. Emami, appellant’s treating physician, as
to whether appellant had continuing disability and residuals from his accepted employment injury
and accepted condition of lumbar sprain.
OWCP relied upon the second opinion findings of Dr. Lakin in determining that appellant
had no continuing residuals or disability warranting further wage-loss compensation or medical
benefits. Dr. Lakin noted in his August 15, 2014 and January 28, 2015 reports that appellant had
no objective signs of radiculopathy on examination or on EMG/NCV testing which did not
5

S.P., Docket No. 20-0196 (issued June 24, 2020); R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
6

S.P., id.; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

R.P., supra note 4; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); see also A.P., Docket
No. 08-1822 (issued August 5, 2009); Furman G. Peake, 41 ECAB 361, 364 (1990).
8

See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
9

5 U.S.C. § 8123(a); see R.P., supra note 4; R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 081675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
10

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

11

See R.P., supra note 4; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

correlate with his MRI scan findings. He concluded that appellant had no disability and no need
for further medical treatment.
On September 4, 2014 Dr. Emami reviewed appellant’s MRI scan and found lumbar disc
herniation at L4-5 with impingement of the L5 nerve root. He noted positive findings including
mild paraspinal spasms and recommended a lumbar laminectomy, foraminotomy at L4 -5 and
discectomy at L4-5 finding that appellant was totally disabled.
As Dr. Lakin concluded that appellant was able to resume his date of injury position
without restrictions and Dr. Emami concluded that appellant remained totally disabled for work,
there is an unresolved conflict in the medical evidence. OWCP should have resolved the conflict
of medical opinion evidence before terminating compensation. 12 As it failed to resolve the conflict
of medical opinion evidence, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective February 9, 2015.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective February 9, 2015.13

12

K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued June 4, 2018).

13

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the June 23, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: November 17, 2021
Washington, DC

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

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

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

7