United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 15-0007
Issued: September 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 1, 2014 appellant filed a timely appeal of a September 3, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the date of OWCP’s last merit decision on November 15, 2013 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.3

1

On appeal appellant advised that she was unable to call at the scheduled time because the telephone system was
experiencing technical difficulties. The Board notes that this argument constitutes new evidence which the Board
may not review for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
2
3

5 U.S.C. § 8101 et seq.

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated August 13, 2015, the Board denied the request on the grounds that appellant’s arguments
on appeal could be adequately addressed in a decision based on a review of the case as submitted on the record.
Order Denying Request for Oral Argument, Docket No. 15-0007 (issued August 13, 2015).

ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request
for an oral hearing.
On appeal appellant advised that she was unable to call at the scheduled time because the
telephone system was experiencing technical difficulties.
FACTUAL HISTORY
Appellant, a 50-year-old safety technician, filed an occupational disease claim (Form
CA-2) alleging a right wrist condition when she fell due to factors of her federal employment.
By decision dated November 15, 2013, OWCP denied the claim because appellant had
failed to establish fact of injury, finding the medical evidence insufficient to establish a diagnosis
in connection with factors of her federal employment.
On December 5, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
In a July 3, 2014 notice, OWCP’s Branch of Hearings and Review scheduled an oral
hearing for 1:00 p.m. Eastern Time on August 19, 2014. It provided appellant with a toll-free
number and pass code for the telephone hearing. The notice was mailed to appellant’s address of
record.
On August 19, 2014 appellant failed to participate in the telephone hearing.
By decision dated September 3, 2014, an OWCP hearing representative found that
appellant had failed to appear at the oral hearing and had abandoned her request. She found no
evidence that appellant had contacted OWCP prior to or subsequent to the scheduled hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.4 Unless
otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.5 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.6 Section 10.622(f) of OWCP regulations provide that a
claimant who fails to appear at a scheduled hearing may request in writing within 10 days after

4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

5

20 C.F.R. § 10.617(b).

6

See M.B., Docket No. 10-1077 (issued March 17, 2011).

2

the date set for the hearing that another hearing be scheduled.7 Where good cause for failure to
appear is shown, another hearing will be scheduled and conducted by teleconference. The failure
of the claimant to request another hearing within 10 days, or the failure of the claimant to appear
at the second scheduled hearing without good cause shown, shall constitute abandonment of the
request for a hearing. Where good cause is shown for failure to appear at the second scheduled
hearing, review of the matter will proceed as a review of the written record.8 Where it has been
determined that a claimant has abandoned her right to a hearing, OWCP will issue a formal
decision finding that the claimant has abandoned her request for a hearing.9
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned her request
for an oral hearing.
The record establishes that on July 3, 2014 in response to appellant’s timely request for
an oral hearing, the Branch of Hearings and Review mailed an appropriate notice of the
scheduled hearing to be held on August 19, 2014 at 1:00 p.m. Eastern Time by telephone. The
hearing notice was properly mailed to appellant’s last known address of record. As the Board
has held, in the absence of evidence to the contrary, a letter properly addressed and mailed in the
due course of business is presumed to have arrived at the mailing address in due course. This is
known as the mailbox rule.10 The Board finds that the notice was sent more than 30 days prior to
the scheduled hearing date of August 19, 2014. The record establishes that appellant did not
appear at the appointed time. Further, the record establishes that she failed to contact OWCP’s
Branch of Hearings and Reviews either to request a postponement of the hearing prior to
August 19, 2014, or to explain her failure to appear at the hearing within 10 days of the
scheduled hearing. Thus, the Board finds that appellant abandoned her request for an oral
hearing.
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned her request
for an oral hearing.

7

20 C.F.R. § 10.622(f).

8

Id.

9

See N.L., Docket No. 15-0713 (issued July 14, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011).
10

See R.M., Docket No. 14-1512 (issued October 15, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Canandaigua, NY, Employer
__________________________________________

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Appearances:
Brook L. Beesley, for the appellant
Office of Solicitor, for the Director

Docket No. 11-46
Issued: August 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 6, 2010 appellant, through her representative, filed a timely appeal from the
September 10, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her claim for compensation. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 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’s psychiatric condition is causally related to the incident
that occurred at work on October 14, 2008.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 17, 2008 appellant, a 39-year-old telephone operator, filed a claim for
workers’ compensation benefits alleging that she sustained stress and mental anguish as a result
of an incident that occurred at work on October 14, 2008: “On duty armed police officer came
into my office, acting violent and hostile with his behavior, trembling and shaking, shouting and
pointing his finger and put his hand on his weapon, threatening me.”
After developing the factual evidence, OWCP accepted that appellant was in the course
of her employment on October 14, 2008 when an officer came into her office, raised his voice
and indicated that he believed appellant’s behavior constituted patient abuse. It accepted that the
officer had his gun on him at the time and that it was visible to appellant throughout the entire
incident. OWCP noted that appellant provided no witnesses but that the employing
establishment did not challenge that the incident occurred as alleged.
In a decision dated December 31, 2008, OWCP denied appellant’s claim for
compensation on the grounds that the medical evidence provided no diagnosis of her injury and
no opinion, with medical rationale, on how her diagnosed condition was related to the accepted
work incident.
On January 24, 2009 Dr. John B. Schubmehl, a psychiatrist, related appellant’s history,
including her confrontation with an officer at work on October 14, 2008. He described his brief
meetings with appellant since an initial diagnostic session in August 2008, when he diagnosed
major depression and post-traumatic stress disorder.
In a decision dated July 21, 2009, OWCP’s hearing representative affirmed the denial of
appellant’s claim for compensation. The hearing representative found that, while OWCP had
accepted that appellant was subject to harassment and intimidation on October 14, 2008, the
medical evidence failed to establish a diagnosed emotional condition causally related to the
accepted incident. OWCP’s hearing representative noted that Dr. Schubmehl offered no medical
opinion on the issue of causation.
Appellant requested reconsideration and submitted a screening report from a licensed
clinical social worker, discharge instructions from the F.F. Thompson Hospital Emergency
Department and a May 24, 2010 report from Dr. Rida Y. Rizk, a consulting psychiatrist, who
related appellant’s current complaint, the history of present illness and his findings on mental
status examination. Dr. Rizk diagnosed post-traumatic stress disorder.
In a decision dated September 10, 2010, OWCP reviewed the merits of appellant’s case
and denied modification of its prior decision. It found that Dr. Rizk’s report was insufficient to
establish the element of causal relationship.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
2

5 U.S.C. § 8102(a).

2

has the burden of proof to establish the essential elements of her claim. When an employee
claims that she sustained an injury in the performance of duty, she must submit sufficient
evidence to establish that she experienced a specific event, incident or exposure occurring at the
time, place and in the manner alleged. She must also establish that such event, incident or
exposure caused an injury.3
Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty,6
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7
ANALYSIS
OWCP accepts that appellant experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. Appellant alleged that on October 14,
2008 an on-duty police officer came into her office “acting violent and hostile with his behavior,
trembling and shaking, shouting and pointing his finger and put his hand on his weapon,
threatening me.” When disability results from an employee’s emotional reaction to her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of FECA.8 OWCP, therefore, properly accepted that the implicated
employment factor fell within the scope of FECA’s coverage.9 The question that remains is
whether this incident caused an injury.
Causation is a medical issue and no physician has submitted an opinion on whether the
October 14, 2008 incident at work caused a diagnosed psychiatric injury. Dr. Schubmehl, the
treating psychiatrist, related appellant’s history, including a reference to a nonspecific
confrontation with an officer on October 14, 2008. He offered no opinion on whether this
incident caused a psychiatric injury. Dr. Rizk, the consulting psychiatrist, related appellant’s
3

John J. Carlone, 41 ECAB 354 (1989).

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

Lillian Cutler, 28 ECAB 125 (1976).

9

OWCP does not appear to accept that the officer placed his hand on his weapon, but there is no evidence to the
contrary. An employee’s statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence. Caroline Thomas, 51 ECAB
451 (2000).

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history and findings and diagnosed post-traumatic stress disorder, but he, too, offered no opinion
on whether the October 14, 2008 incident caused a psychiatric injury. A social worker is not a
“physician” within the meaning of FECA and is not competent to give a medical opinion.10 So
the screening report appellant submitted to support her request for reconsideration has no
probative value on the issue of causal relationship.
The record contains appellant’s narrative account of what happened on October 14, 2008.
Her psychiatrist did not demonstrate a thorough understanding of the details and should offer an
opinion on whether the incident caused a diagnosed psychiatric injury. If so, the psychiatrist
must support his opinion with psychiatric reasoning, reasoning sufficient to show that the
conclusion drawn is sound, logical and rational.11 The psychiatrist should account for
appellant’s preexisting condition and should explain how he was able to determine that the
October 14, 2008 incident caused or aggravated appellant’s diagnosed condition. The rationale
provided will be critical to establishing the element of causal relationship.
Because the medical evidence does not establish the element of causal relationship, the
Board finds that appellant has not met her burden of proof to establish that she sustained a
psychiatric injury in the performance of duty on October 14, 2008. The Board will therefore
affirm OWCP’s September 10, 2010 decision.
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 her burden of proof to establish that her
psychiatric condition is causally related to the incident that occurred at work on
October 14, 2008.

10

Kurt R. Ellis, 47 ECAB 505 (1996).

11

It is not necessary that the evidence be so conclusive as to suggest causal connection beyond all possible doubt.
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.

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ORDER
IT IS HEREBY ORDERED THAT the September 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-858
Issued: November 19, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 11, 2009 appellant filed a timely appeal from the September 10 and
December 19, 2008 decisions of the Office of Workers’ Compensation Programs denying her
recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this claim.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
on and after July 10, 2008 causally related to her accepted employment injury.
FACTUAL HISTORY
On August 17, 2007 appellant, then a 33-year-old medical records technician, sprained
her right ankle and injured her lower back and hip when she fell going to her car. The Office
accepted the claim for a right ankle sprain and left hip contusion. It also accepted a

November 14, 2007 recurrence of disability.
December 27, 2007.

Appellant returned to full-duty work on

On July 10, 2008 appellant filed a claim for a recurrence of disability beginning that day.
She noted that she continued to have pain in her hip and lower back.
In a letter dated July 16, 2008, the Office advised appellant as to the medical and factual
information required to support her recurrence claim.
Appellant submitted medical reports dated July 11 to 31, 2008 from Dr. David J.
Mancini, a treating physician, who saw appellant for complaints of low back and hip pain. A
physical examination revealed moderately antalgic ambulation and diffuse paraspinal tenderness
on palpation. Range of motion showed appellant’s forward back flexion was “profoundly
limited secondary to her suggested report of severe pain in her back with this attempted
movement. Dr. Mancini recommended an MRI scan be performed to rule out a disc herniation.
A July 21, 2008 MRI scan was negative for disc herniation.
On July 31, 2008 Dr. Mancini reviewed the MRI scan which showed no changes from a
prior MRI scan performed at the time of appellant’s employment injury. He concluded that
appellant’s condition was not employment related as “these current persistent back pains have
developed gradually in the recent time period unrelated to any more recent injury.”
By decision dated September 10, 2008, the Office denied appellant’s claim for a
recurrence of disability beginning July 10, 2008.
On September 23, 2008 appellant requested reconsideration. In a September 4, 2008
report, Dr. John J. McPhilemy, a treating osteopath, who diagnosed left sacroiliac somatic
dysfunction based upon his review of the medical evidence, physical examination and history of
the employment injury. Physical examination revealed lumbar spine paravertebral muscle
tenderness, restricted lumbar spine flexion and extension, left sacroiliac joint tenderness, and to a
lesser extent, left sciatic notch tenderness.” Dr. McPhilemy indicated that appellant was
currently not working and recommended “a little more aggressive therapy” with possible
manipulative therapy by a chiropractor or osteopathic physician.
In a September 11, 2008 note, Dr. Maria Milcu, a Board-certified pathologist, noted that
appellant had been under her care from July 28, 2008 until the present time for lower back pain.
By decision dated December 19, 2008, the Office denied modification of the
September 10, 2008 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a

2

previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.1
Office procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change, demonstrated by objective findings, in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.2
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
compensation is causally related to the accepted employment injury.3 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.4 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.5 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.6
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.7 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.8 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.9

1

20 C.F.R. § 10.5(x); see S.F., 59 ECAB ___ (Docket No. 07-2287, issued May 16, 2008).

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

3

Kenneth R. Love, 50 ECAB 193, 199 (1998).

4

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

5

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); Ricky S. Storms, 52 ECAB 349 (2001); see
also 20 C.F.R. § 10.104(a)-(b).
6

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

7

See Ricky S. Storms, supra note 5; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
8

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
9

See Ricky S. Storms, supra note 5; Morris Scanlon, 11 ECAB 384, 385 (1960).

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ANALYSIS
The Office accepted that appellant sustained a right ankle sprain and left hip contusion in
the performance of duty on August 17, 2007 and a November 14, 2007 recurrence of disability.
Appellant returned to full duty on December 27, 2007. She filed a recurrence of disability claim
on July 10, 2008 alleging disability that day. However, appellant did not submit sufficient
medical evidence to establish that her disability on or after that date was causally related to her
accepted injury.
On July 31, 2008 Dr. Mancini reviewed a recent MRI scan and noted that there was no
change from prior studies. He concluded that appellant’s condition was not employment related
as “these current persistent back pains have developed gradually in the recent time period
unrelated to any more recent injury.” As Dr. Mancini found that appellant’s disability was not
employment related, his report is insufficient to establish her claim.
On September 11, 2008 Dr. Milcu reported only that appellant had been under her care
since July 28, 2008 due to low back pain. She did not address whether appellant was disabled
commencing July 10, 2008 or how any such disability was due to the August 17, 2007 injury. A
physician’s mere diagnosis of pain without supporting medical rationale does not constitute a
basis for payment of compensation.10 Dr. Milea does not establish that appellant had any
disability beginning July 10, 2008 causally related to her accepted August 17, 2007 employment
injury.
On September 4, 2008 Dr. McPhilemy provided findings on physical examination and
reviewed the history of the employment injury and medical reports. He diagnosed left sacroiliac
somatic dysfunction. Dr. McPhilemy did not, however, address causal relationship on the issue
of appellant’s disability as of July 10, 2008.
On appeal appellant contends that her disability is related to the August 17, 2007
employment injury as she had no other injuries and was in pain at the time she returned to work.
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his or her claimed injury and his
or her employment.11 The record in this case does not contain sufficient medical evidence
establishing that she was disabled as of that date due to her accepted injury. There is no medical
report containing a rationalized medical opinion that appellant’s claimed recurrence of disability
was caused by the accepted injury.12 She did not submit sufficient medical evidence to meet her
burden of proof to establish a recurrence of disability. The Office properly denied her claim.13

10

Robert Broome, 55 ECAB 339 (2004) (the Board has held that a diagnosis of “pain” does not constitute the
basis for the payment of compensation).
11

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); J.M., 58 ECAB ___ (Docket No. 06-2094,
issued January 30, 2007); Donald W. Long, 41 ECAB 142 (1989).
12

Cecelia M. Corley, 56 ECAB 662 (2005).

13

Tammy L. Medley, 55 ECAB 182 (2003).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability beginning July 10, 2008 causally related to the August 17, 2007 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 19 and September 10, 2008 are affirmed.
Issued: November 19, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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Appearances:
Charles H. Allenberg, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-395
Issued: September 16, 2011

Case Submitted on the Record

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

JURISDICTION
On December 7, 2010 appellant filed a timely appeal from a July 12, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for a
prerecoupment hearing. Since more than 180 days elapsed since the most recent merit decision
of April 22, 2010 to the filing of this appeal on December 7, 2010, the Board lacks jurisdiction to
review the merits of the claim pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for a prerecoupment
hearing.
1
2

5 U.S.C. §§ 8101-8193.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On March 23, 2009 appellant, then a 46-year-old industrial equipment mechanic leader,
filed an occupational disease claim alleging that he sustained hearing loss due to factors of his
employment. OWCP found appellant was exposed to noise hazards 8 hours to 10 hours a day, 5
days a week and that he used hearing protection equipment.
OWCP referred appellant to Dr. Charles E. Hollingsworth, II, a Board-certified
otolaryngologist, for a second opinion evaluation. In a July 8, 2009 report, Dr. Hollingsworth
reviewed the statement of accepted facts and appellant’s audiograms. He noted appellant’s
earliest audiogram of September 1984 had normal hearing on the right side and moderate to
severe high frequency loss on the left side. The most recent audiogram of July 8, 2009
demonstrated mild high frequency hearing loss on the right side and moderate mid frequency and
severe high frequency loss on the left side. Dr. Hollingsworth opined that the right-sided high
frequency loss was consistent with appellant’s noise exposure at work, while the left-sided
change in hearing was due to presbycusis and was a progressive loss as opposed to work noise
exposure. Under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), he opined that appellant had
no right ear hearing loss and 16.9 percent left ear hearing loss. Dr. Hollingsworth advised that
appellant did not need hearing aids. A copy of the July 8, 2009 audiometric testing, hearing
evaluation worksheet and verification of audiometric testing was attached.
In an October 19, 2009 report, an OWCP medical adviser reviewed the record and opined
that maximum medical improvement was reached July 8, 2009. Using the audiogram obtained
by Dr. Hollingsworth, the medical adviser found 16.9 percent left ear hearing loss and zero
percent hearing loss in the right ear under the sixth edition of the A.M.A., Guides. He agreed
that the left-side hearing loss was the result of presbycusis and not related to noise exposure on
the job; thus, there was no ratable job-related hearing loss in the left ear. Dr. Hollingsworth
noted that appellant’s noise exposure on the job was sufficient to implicate his hearing loss on
the right side. He opined that hearing aids were not authorized.
By decision dated November 4, 2009, OWCP accepted that appellant had work-related
hearing loss to the left ear. Hearing aids were not authorized.
On January 14, 2010 appellant requested a schedule award for his work-related hearing
loss. On March 30, 2010 OWCP processed a schedule award for 17 percent monaural hearing
loss of the left ear. The period of the award ran for 8.84 weeks during the period July 8 to
September 7, 2009, for a total amount of $6,482.02.
By decision dated April 19, 2010, OWCP issued a corrected decision accepting rightsided hearing loss. It found that Dr. Hollingsworth and OWCP’s medical adviser opined that the
high frequency hearing loss in the left ear was not work related. Therefore, there was no ratable
job-related hearing loss in the left ear. OWCP advised that the schedule award payment for the
left ear would be declared an overpayment. Hearing aids were not authorized.
On April 20, 2010 OWCP issued a preliminary notice of overpayment finding that
appellant received a $6,482.02 in compensation under a schedule award for 17 percent

2

permanent impairment to the left ear from July 8 through September 7, 2009. It found him
without fault in creating the overpayment. OWCP informed appellant of the options he could
take, including requesting a prerecoupment hearing within 30 days. On April 21, 2010 it sent
appellant a copy of the overpayment recovery questionnaire.
By decision dated April 22, 2010, OWCP denied appellant’s claim for a schedule award
to the right ear on the basis there was no ratable impairment.
On May 20, 2010 appellant requested a telephonic prerecoupment hearing before
OWCP’s hearing representative on the issues of fault and a possible waiver of overpayment. The
envelope was postmarked May 21, 2010. In a July 12, 2010 decision, OWCP denied appellant’s
request for a prerecoupment hearing as untimely.
LEGAL PRECEDENT
In response to a preliminary notice of overpayment, the individual may present evidence
to OWCP in writing or at a prerecoupment hearing. The evidence must be presented or the
hearing requested within 30 days of the date of the written notice of overpayment. Failure to
request the hearing within this 30-day time period shall constitute a waiver of that right.3
ANALYSIS
OWCP issued its preliminary overpayment notice on April 20, 2010 and informed
appellant that he had 30 days to request a prerecoupment hearing. Appellant did not make his
request until May 21, 2010, as determined by the postmark on the envelope.4 May 21, 2010 was
the 31st day after April 20, 2010. Appellant’s failure to request a prerecoupment hearing within
30 days constitutes a waiver of that right. The Board will therefore affirm OWCP’s July 12,
2010 decision denying his request.
On appeal, appellant’s attorney argues that the overpayment should be waived. Section
501.2(c) of the Board’s regulations provide that the Board has jurisdiction to consider and decide
appeals from the final decision of OWCP in any case arising under FECA.5 As OWCP did not
issue a final decision with respect to the overpayment by the time that the appeal was filed, the
Board does not have jurisdiction over the matter.
CONCLUSION
The Board finds that OWCP properly denied appellant’s untimely request for a
prerecoupment hearing.

3

20 C.F.R. § 10.432.

4

See id. at § 10.439 (prerecoupment hearings shall be conducted in exactly the same manner as provided for
hearings under 5 U.S.C. § 8124(b)); id. at § 10.616(a) (the hearing request must be sent within 30 days as
determined by postmark or other carrier’s date marking).
5

20 C.F.R. § 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
ENVIRONMENTAL PROTECTION AGENCY,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2235
Issued: March 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 12, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated May 6, 2008. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
recurrence of disability on April 3, 2000 causally related to her December 15, 1999 employment
injury.
FACTUAL HISTORY
This case has previously been before the Board. In a February 11, 2003 decision,1 the
Board found an unresolved conflict of medical opinion between appellant’s attending physician,
Dr. Charles E. Wilkins Jr., a Board-certified orthopedic surgeon and an Office referral physician,
1

Docket No. 03-57 (issued February 11, 2003).

on whether appellant’s neck condition on and after December 15, 1999 was causally related to
her accepted cervical strain. The Office undertook further development and referred appellant to
Dr. Menachem M. Meller, a Board-certified orthopedic surgeon, for an impartial medical
examination. By decision dated July 28, 2005, it denied appellant’s claim for a recurrence of
disability based on Dr. Meller’s February 9, 2005 report. Appellant requested an oral hearing
and by decision dated March 1, 2006, the hearing representative affirmed the Office’s decision.
In a decision dated February 1, 2007,2 the Board found that Dr. Meller did not attribute
appellant’s condition or disability after December 15, 1999 to her accepted cervical strain and
that the weight of the medical evidence did not establish a recurrence of disability. The facts and
the circumstances of the case as set out in the Board’s prior decision are adopted herein by
reference.
On January 31, 2008 appellant requested reconsideration and submitted a factual
statement and a January 30, 2008 report from Dr. Wilkins. She contended that the Office should
have accepted cervical radiculitis as resulting from her employment injury and that Dr. Meller’s
report was not entitled to the weight of the medical opinion evidence. Dr. Wilkins noted
appellant’s history of injury on December 15, 1999 and diagnosed cervical radiculitis through an
electromyelogram on January 27, 2000. He stated that, in April 2000, appellant experienced a
recurrence of radiating right arm pain and that this condition was identical in distribution to her
original presentation. Dr. Wilkins stated that appellant’s recurrence of disability was the direct
result of her December 15, 1999 injury. He opined that appellant’s onset of cervical radiculitis
was distinctly different from ordinary age-related degenerative discogenic change as found by
Dr. Meller. Dr. Wilkins stated that appellant’s absence from work in December 1999 and
April 2000 were the “direct result of the documented attack of cervical radiculitis resulting from
her work-related injury of December [15,] 1999.”
By decision dated May 6, 2008, the Office denied modification of the prior decisions
finding that Dr. Wilkins’ report was not sufficient to overcome the weight accorded Dr. Meller’s
reports as the impartial medical examiner.
LEGAL PRECEDENT
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing by the weight of reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.
The burden includes the necessity of furnishing evidence from a qualified physician who, on the
basis of a complete and accurate factual and medical history, concluded that the condition is
causally related to the employment injury. Moreover, sound medical reasoning must support the
physician’s conclusion.3
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury. In this regard, medical evidence
of bridging symptoms between the recurrence of the accepted injury must support the
2

Docket No. 06-1754 (issued February 1, 2007).

3

Ricky S. Storms, 52 ECAB 349 351-52 (2001).

2

physician’s conclusion of a causal relationship. While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.4
It is well established that, when 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 proper factual and medical background must be given special weight.5
ANALYSIS
The Board, previously found that the report of Dr. Meller, a Board-certified orthopedic
surgeon and impartial medical specialist, was entitled to special weight and resolved the conflict
on medical opinion evidence regarding appellant’s alleged recurrence of disability. Appellant
requested reconsideration before the Office and submitted an additional report from Dr.Wilkins,
a Board-certified orthopedic surgeon and her attending physician, who was on one side of the
conflict in medical opinion that Dr. Meller resolved.
Dr. Wilkins opined that appellant’s appropriate diagnosis was cervical radiculopathy
rather than cervical strain and stated that she sustained a recurrence of this condition in
April 2000, which resulted in her disability for work. He disagreed with Dr. Meller’s opinion
that appellant’s condition was age related and opined that an onset of cervical radiculitis was
distinctly different from ordinary age-related degenerative discogenic change.
While
Dr. Wilkins described appellant’s accepted employment injury, his diagnosis and opined that this
condition was due to her employment, he failed to provide the necessary medical reasoning to
explain why his diagnosis of cervical radiculopathy was correct rather than age-related
degeneration as found by Dr. Meller. He also failed to discuss why this condition would recur.
Dr. Wilkins was on one side of the conflict that Dr. Meller resolved. The additional report from
Dr. Wilkins is insufficient to overcome the weight accorded Dr. Meller as the impartial medical
examiner or to create a new conflict.6
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establishing that
she sustained a recurrence of disability on April 3, 2000.

4

Id.

5

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

6

Jaja K Asaramo, 55 ECAB 200, 205 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
New York, NY, Employer
___________________________________________ )
H.H., Appellant

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

Docket No. 14-2079
Issued: April 14, 2015

Case Submitted on the Record

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

On September 30, 2014, appellant filed an application for review of a September 9, 2014
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his claim for
a traumatic injury.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. In this case, in a decision
dated September 9, 2014, OWCP denied appellant’s claim for a traumatic injury, finding that the
evidence did not establish that the claimed events occurred as described. It found that he had not
responded to its questions regarding the factual portion of his claim.

1

41 ECAB 548 (1990).

The Board finds that OWCP did not review the evidence received on September 9, 2014.2
In that submission, appellant provided a response to OWCP’s request for factual information
regarding his claim.
As OWCP did not review this evidence, the case will be remanded to OWCP to enable it
to properly consider all the evidence submitted at the time of the September 9, 2014 decision.
Following such further development as OWCP deems necessary, it shall issue an appropriate
merit decision on the claim.
IT IS HEREBY ORDERED THAT the September 9, 2014 decision of the Office of
Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: April 14, 2015
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

2

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by OWCP prior to issuance of its final decision and noted that this
principle applies with equal force when evidence is received by OWCP the same day a final decision is issued).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Alexandria, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel E. Broussard, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2103
Issued: August 26, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2007 appellant, through her attorney, filed a timely appeal from the Office
of Workers’ Compensation Programs’ May 21, 2007 merit decision terminating her
compensation and schedule award benefits on the grounds that she refused an offer of suitable
work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective May 21, 2007 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On September 4, 2003 appellant, a 50-year-old licensed practical nurse, filed a traumatic
injury claim alleging that she injured her neck while lifting a patient. The Office accepted her
claim for cervical and lumbar strain, aggravation of degenerative disc disease of the cervical and

lumbar spine and lumbar radiculopathy. Appellant stopped working on August 21, 2003, the
date of injury, and the Office placed her on the periodic rolls.
Appellant was treated by Dr. Luke Corsten, a Board-certified neurosurgeon, and
Dr. Michael Burdine, a treating physician. On March 11, 2004 Dr. Corsten opined that appellant
was disabled from employment. On October 6, 2004 Dr. Burdine stated that she was unable to
work due to significant pain in her back and leg. In a September 28, 2004 second opinion report,
Dr. John Sandifer, a Board-certified orthopedic surgeon, diagnosed cervical strain, and multiple
disc disease of the cervical and lumbar spine with radiculopathy. He opined that appellant was
able to work part time, provided that she be restricted from pushing, pulling or lifting more than
five pounds, and that she be precluded from twisting, bending, stooping or reaching above
shoulder level. The record also includes reports of electromyogram (EMG) and nerve
conduction studies dated December 6, 2004 and March 14, 2005 from Dr. Charles Kaufman, a
Board-certified neurologist.
The Office found a conflict in medical opinion and referred appellant to Dr. Martin
Bloom, a Board-certified orthopedic surgeon, to resolve the conflict. In a February 22, 2005
report, Dr. Bloom opined that appellant continued to experience residuals from her accepted
employment injury, but that she was capable of performing sedentary work on a full-time basis.1
He stated that he had reviewed a January 30, 2004 report of a magnetic resonance imaging
(MRI) scan.
On April 22, 2005 the employing establishment offered appellant a limited-duty position
as a medical support assistant, which encompassed Dr. Bloom’s restrictions. On April 27, 2005
appellant rejected the April 22, 2005 job offer, stating that her doctors had not yet released her to
work.
By letter dated May 4, 2005, the Office notified appellant that it found the medical
support assistant position to be suitable, based on Dr. Bloom’s February 22, 2005 report. The
Office advised appellant that she had 30 days to accept the offer or provide reasons why she
believed the position was not suitable. Appellant did not accept the offer within the 30-day
period.
By letter dated June 8, 2005, the Office advised appellant that she had failed to provide
valid reasons for refusing to accept the limited-duty job and that, if she had not accepted the
position and arranged for a report date within 15 days of the date of the letter, her entitlement to
wage-loss and schedule award benefits would be terminated. The Office stated that no additional
reasons for refusal would be accepted.
In response to the Office’s June 8, 2005 letter, appellant submitted a June 20, 2005 report
of an examination, EMG testing and nerve conduction studies of the upper and lower extremities
from Dr. Kaufman; a report of a January 31, 2005 MRI scan of the lumbar spine; and a report of
a January 31, 2005 MRI scan of the cervical spine.

1

Dr. Bloom’s restrictions included lifting no more than 20 pounds; being allowed to sit or stand as necessary; and
no twisting, bending, stooping or kneeling.

2

By decision dated June 29, 2005, the Office terminated appellant’s wage-loss and
schedule award benefits, effective that date, on the grounds that he had refused an offer of
suitable work. It did not address the medical evidence submitted subsequent to its June 8, 2005
letter.
On July 17, 2005 appellant, through her attorney, requested an oral hearing. She
submitted additional medical evidence, including reports from Dr. Burdine, Dr. Kaufman and
Dr. Anthony Ioppolo, a Board-certified neurosurgeon.
At the April 9, 2007 hearing, appellant contended that she was unable to perform the
functions required by the proposed medical support assistant job, and that the medical evidence
submitted established her position. Her representative argued that the impartial medical
examiner had not reviewed the January 31, 2005 MRI scan reports submitted following the
Office’s June 8, 2005 “15-day” letter. The hearing representative informed appellant and her
representative that, in its June 29, 2005 decision, the Office had properly disregarded the medical
evidence submitted following its “15-day letter” of June 8, 2005, stating: “Even if the medical
evidence is convincing and overwhelming after [the June 8, 2005 letter] that initial 30-day
period, the Office [is not required to consider] any additional medical evidence at that time.”
By decision dated May 21, 2007, the Office hearing representative affirmed the June 29,
2005 decision terminating appellant’s entitlement to compensation benefits, based on her refusal
to accept an offer of suitable employment pursuant to 5 U.S.C. § 8106(c)(2) of the Federal
Employees’ Compensation Act. The representative found that the Office had followed all
procedural requirements in terminating appellant’s benefits. He stated that a review of the record
established that Dr. Bloom had reviewed the January 31, 2005 MRI scan reports prior to
submitting his report. The representative acknowledged that the Office had disregarded all
medical evidence submitted after June 8, 2005.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 It has authority under section 8106(c)(2) of the Act to
terminate compensation for any partially disabled employee who refuses or neglects to work
after suitable work is offered.3 To justify termination, the Office must show that the work
offered was suitable, that the employee was informed of the consequences of her refusal to
accept such employment and that she was allowed a reasonable period to accept or reject the
position or submit evidence or reasons why the position is not suitable and cannot be accepted.4

2

Willa M. Frazier, 55 ECAB 379 (2004); see also Roberto Rodriguez, 50 ECAB 124 (1998).

3

5 U.S.C. § 8106(c).

4

See Ronald M. Jones, 52 ECAB 190, 191 (2000); see also Maggie L. Moore, 42 ECAB 484, 488 (1991), reaff’d
on recon., 43 ECAB 818, 824 (1992). See also 20 C.F.R. § 10.516 (the Office shall advise the employee that it has
found the offered work to be suitable and afford the employee 30 days to accept the job or present any reasons to
counter the Office’s finding of suitability).

3

Office regulations provide that, in determining what constitutes “suitable work” for a
particular disabled employee, the Office considers the employee’s current physical limitations,
whether the work is available within the employee’s demonstrated commuting area, the
employee’s qualifications to perform such work and other relevant factors.5 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.6
Once the Office has demonstrated that the job offered is suitable, the burden shifts to the
employee to show that his or her refusal to work is reasonable or justified.7
ANALYSIS
The Office terminated appellant’s entitlement to compensation benefits, based on her
refusal to accept an offer of suitable employment pursuant to 5 U.S.C. § 8106(c)(2) of the Act.
The representative found that the Office had followed all procedural requirements in terminating
appellant’s benefits. The Board disagrees and finds that the Office did not properly determine
that appellant refused an offer of suitable work.
On May 4, 2005 the Office notified appellant that it found the medical support assistant
position to be suitable and properly advised her that she had 30 days to accept the offer or
provide reasons why she believed the position was not suitable. When appellant did not accept
the offer within the 30-day period, the Office advised appellant, by letter dated June 8, 2005, that
she had failed to provide valid reasons for refusing to accept the limited-duty job and that, if she
had not accepted the position and arranged for a report date within 15 days of the date of the
letter, her entitlement to wage-loss and schedule award benefits would be terminated. The Office
stated that no additional reasons for refusal would be accepted. It again advised appellant of the
penalty provisions of section 8106(c)(2).
Appellant then submitted new medical evidence, including: a June 20, 2005 report of an
examination, EMG testing and nerve conduction studies of the upper and lower extremities from
Dr. Kaufman. Appellant also submitted a report of a January 31, 2005 MRI scan of the lumbar
spine and a report of a January 31, 2005 MRI scan of the cervical spine. Although the new
medical evidence was received by the Office prior to the issuance of the June 29, 2005 decision
terminating appellant’s benefits, the record demonstrates that the Office did not review it prior to
rendering its decision. Further, the Board is unable to determine whether the hearing
representative considered Dr. Kaufman’s report in rendering his May 21, 2007 decision. In
affirming the June 29, 2005 termination decision, the hearing representative acknowledged that
the Office had disregarded all medical evidence submitted after June 8, 2005, and the May 21,
2007 decision does not contain a finding that the Office erred in so doing. The Board notes that,
at the April 9, 2007 hearing, the hearing representative informed appellant and her representative
5

Rebecca L. Eckert, 54 ECAB 183 (2002).

6

20 C.F.R. § 10.517. See Kathy E. Murray, 55 ECAB 288 (2004); see also Ronald M. Jones, supra note 4.

7

Id.

4

that the Office had properly disregarded the medical evidence submitted following its “15-day
letter” of June 8, 2005, and that, even if the medical evidence is convincing and overwhelming
after the initial 30-day period, the Office is not required to consider any additional medical
evidence at that time. Thus, the record strongly suggests that the hearing representative also did
not consider Dr. Kaufman’s report. The fact that he referred to reports by Dr. Kaufman in the
course of his discussion of the medical evidence is not determinative, as the record contains other
reports from Dr. Kaufman which were previously received and considered by the Office.
The hearing representative’s decision also suggests that he did not review or consider the
January 31, 2005 MRI scan reports. He stated that a review of the record indicated that
Dr. Bloom had reviewed the reports prior to submitting his February 22, 2005 report. However,
the Board notes that Dr. Bloom’s report refers only to a January 30, 2004 MRI scan report.
There is nothing in the May 21, 2007 decision, in the form of discussion, suggesting that the
hearing representative reviewed or considered the January 31, 2005 MRI scan reports.
The Board finds that the Office acted improperly in not considering all of the medical
evidence submitted by appellant before terminating appellant’s compensation for refusing
suitable work. The Office must review all evidence submitted by a claimant and received by the
Office prior to issuance of its final decision.8 Once the Office advises a claimant that his or her
reasons for refusing an offered position are unacceptable and that he or she has 15 days to accept
the position or have compensation terminated, the claimant submits further reasons and
supporting evidence at his or her own risk. Nevertheless, the Office must consider the reasons
and evidence and can then concurrently reject them as unacceptable and terminate
compensation.9 As the record does not establish that the Office has reviewed Dr. Kaufman’s
June 20, 2005 report or the January 31, 2005 MRI scan reports, the May 21, 2007 decision
terminating appellant’s wage-loss compensation on the grounds that she refused or neglected an
offer of suitable work must be reversed.
CONCLUSION
As the Office failed to review all evidence submitted by appellant prior to issuance of its
final decision, the Board finds that the Office improperly terminated appellant’s compensation
benefits effective May 21, 2007 on the grounds that she refused an offer of suitable work.

8

C.W. Hopkins, 47 ECAB 725, 727 (1996); William A. Couch, 41 ECAB 548 (1990).

9

Kenneth R. Love, 50 ECAB 193, 198 (1998); Maggie L. Moore, supra note 4.

5

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 26, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR PLANT,
Decatur, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-257
Issued: July 21, 2010

Case Submitted on the Record

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

JURISDICTION
On November 2, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ August 4, 2009 decision denying his hearing loss claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
hearing loss in the performance of duty.
FACTUAL HISTORY
On April 24, 2009 appellant, a 62-year-old retired quality assurance evaluator, filed an
occupational disease claim alleging that he sustained bilateral hearing loss as a result of workrelated noise exposure. He last worked at the employing establishment on August 1, 1988 and
first realized that his hearing loss was employment related on April 20, 2009.

In a letter dated May 8, 2009, the Office informed appellant that the information
submitted was insufficient to establish his claim. It requested details regarding the nature and
duration of his employment-related noise exposure. The Office advised him to submit medical
evidence establishing that he had sustained a hearing loss that was causally related to the claimed
work-related noise exposure. It requested information from the employing establishment,
including details regarding appellant’s exposure to noise and reports of hearing tests performed
during the course of his employment.
Appellant submitted audiologist reports for the period May 6, 1970 through May 27,
2009, which were either unsigned or bore illegible signatures. An April 20, 2009 audiogram
performed at Beltone Hearing Facility reflected a mild-to-moderate hearing loss.
In a May 27, 2009 statement, appellant indicated that from 1967 to 1979 he worked in a
steam plant, where he tested gas turbines and was exposed to loud noise eight hours per day and
wore no ear protection. From 1979 to 1988, he was exposed to noise while surveying all areas of
the plant in his position as quality assurance engineer.
A June 17, 2009 statement of accepted facts noted that appellant worked in a loud
industrial environment from 1967 to 1979. From 1979 to 1988, he worked as a quality assurance
engineer and was exposed to noises that came from gas turbines, boiler pumps, heavy equipment,
power drills and other plant noises from 8 to 12 hours per days, five days per week. Appellant
was not provided any hearing protection while working.
The Office referred appellant, together with a copy of his medical record and the
statement of accepted facts, to Dr. George Godwin, a Board-certified otolaryngologist, for a
determination as to whether his hearing loss was caused by employment-related noise exposure.
In a July 14, 2009 report, Dr. Godwin diagnosed bilateral neurosensory hearing loss, based upon
a current audiogram. Canals, drums, drum mobility and fork test results were normal.
Dr. Godwin stated that appellant had normal hearing at the beginning of his work-related noise
exposure. Appellant’s workplace exposure, however, was insufficient as to intensity and
duration to have caused his hearing loss. Further, he did not exhibit sensorineural loss in excess
of what would normally be predicted on the basis of presbycusis. Dr. Godwin opined that
appellant’s hearing loss was not due to employment-related noise exposure. Noting that there
was no significant threshold shift of either ear during appellant’s federal employment noise
exposure, he concluded that the hearing loss occurred after 1988, when appellant’s employmentrelated noise exposure ended.
Appellant submitted personnel records for the period March 22, 1978 to August 1, 1988.
On July 27, 2009 the employing establishment controverted the claim, contending that any
hearing loss sustained by appellant was not causally related to his federal employment, which
ended in 1988.
By decision dated August 4, 2009, the Office denied appellant’s claim on the grounds
that the medical evidence failed to establish that his hearing loss was causally related to
established noise exposure.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that the injury was sustained 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. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.1
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) 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 claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes 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.2
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment, nor
the belief that the condition was caused, precipitated or aggravated by his employment, is
sufficient to establish a causal relationship.3 The mere fact that a disease or condition manifests
itself or worsens during a period of employment4 or that work activities produce symptoms
revelatory of an underlying condition5 does not raise an inference of causal relation between the
condition and the employment factors.

1

Gary J. Watling, 52 ECAB 357 (2001).

2

Solomon Polen, 51 ECAB 341 (2000).

3

Robert G. Morris, 48 ECAB 238-39 (1996).

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

3

ANALYSIS
It is not disputed that appellant was exposed to work-related noise from 1967 to 1979.
However, the weight of the medical evidence does not establish that his hearing loss is causally
related to his employment-related noise exposure.
Appellant submitted various audiogram results, which were either unsigned or bore
illegible signatures, reflecting bilateral hearing loss. None of the audiograms were accompanied
by a physician’s discussion of the employment factors believed to have caused or contributed to
appellant’s hearing loss. These reports do not constitute probative medical evidence.6
The Office’s second opinion physician examined appellant and reviewed the statement of
accepted facts and the entire medical record, including a July 14, 2009 audiogram. Dr. Godwin
diagnosed bilateral neurosensory hearing loss, which he found was not due to employmentrelated noise exposure. He stated that appellant did not exhibit sensorineural loss in excess of
what would normally be predicted on the basis of presbycusis and that his workplace exposure
was insufficient as to intensity and duration to have caused his hearing loss. Noting that there
was no significant threshold shift in either ear during his federal employment noise exposure,
Dr. Godwin concluded that the hearing loss occurred after 1988, when his employment-related
noise exposure ended. The Board finds that Dr. Godwin’s well-reasoned report constitutes the
weight of medical the evidence and does not establish appellant’s claim.
The medical evidence of record does not establish that appellant’s hearing loss was
causally related to factors of his federal employment. The Board finds that he has failed to meet
his burden of proof.
CONCLUSION
The Board finds that appellant did not met his burden of proof to establish that he
developed bilateral hearing loss in the performance of duty.

6

See 5 U.S.C. § 8101(2). This subsection defines the term physician. See Charley V.B. Harley, 2 ECAB 208,
211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician);
Herman L. Henson, 40 ECAB 341 (1988) (an audiologist is not considered a physician under the Act). See
Robert E. Cullison, 55 ECAB 570 (2004) (the Office does not have to review every uncertified audiogram, which
has not been prepared in connection with an examination by a medical specialist).

4

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.A., Appellant
and
DEPARTMENT OF VERTERANS AFFAIRS,
PALO ALTO HEALTH CARE SYSTEM,
Menlo Park, CA, Employer
__________________________________________

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

Docket No. 15-1351
Issued: July 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 1, 2015 appellant filed a timely appeal from a March 9, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective March 1, 2015.

1

Appellant timely requested oral argument before the Board. By order dated February 25, 2015, the Board
exercised its discretion and denied the request as the issue on appeal could be adequately addressed based on a
review of the case record. See Order Denying Request for Oral Argument, Docket No. 15-1351 (issued
February 25, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 9, 2012 appellant, then a 56-year-old nursing assistant, sustained a low back
injury in the performance of duty after lifting a patient from the ground into a bed. He stopped
work on February 13, 2012 and returned to work on February 20, 2012. Appellant worked
intermittently on modified duty thereafter. OWCP accepted the claim for lumbar sprain/strain
and radiculitis.3
Initial medical reports diagnosed sprain or strain of the lumbar region and lumbar
radiculopathy. In a July 3, 2012 report, Dr. John Kaufman, Board-certified in diagnostic
radiology and neuroradiology, advised that a magnetic resonance imaging (MRI) scan of the
lumbar spine revealed mild degenerative changes in the lumbar spine as compared to a previous
May 15, 2006 MRI scan. In particular he noted a broad-based disc bulge with mild canal
narrowing not significantly changed at L1-2, mild disc bulge without canal or foraminal
narrowing at L2-3, unchanged mild broad-based disc bulge with bilateral foraminal narrowing at
L3-4, a new tiny right paracentral disc protrusion with mild narrowing at the right lateral recess
and unchanged mild bilateral foraminal narrowing at L4-5, and unchanged mild bilateral
foraminal narrowing at L5-S1. In a November 8, 2012 report, Dr. Mark Sontag, a Boardcertified physiatrist, advised that appellant complained of back pain, radiating bilateral leg pain,
numbness, and tingling. He noted that on February 9, 2012 appellant was lifting a 320-pound
patient into bed when he noted increased back, neck, arm, and leg pain. On examination
Dr. Sontag noted lumbar flexion extension at 30 degrees, tenderness at the L5-S1 interspace, 4/5
weakness in the left iliopsoas and quadriceps, and straight leg raising at 40 degrees. He advised
that appellant had multilevel disc disease with some stenosis and recommended a functional
restoration pain management program. Dr. Sontag continued submitting reports indicating that
appellant remained symptomatic
On April 4, 2013 OWCP referred appellant, together with the medical record and a
statement of accepted facts to Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, for a
second opinion regarding appellant’s status and whether he had any residuals of his accepted
conditions. In an April 30, 2013 report, Dr. Swartz noted the history of appellant’s injury and
treatment. On examination he noted lumbar ranges of motion and advised that there was
tenderness to lighter touch in the sciatic notches, and increased pain with knees partially flexed
when face down in the prone position with internal and external rotation of both feet and ankles.
Dr. Swartz opined that the diagnosis of L4-5 disc protrusion with mild narrowing at the right
lateral recess with bilateral L4 radiculopathy was inconsistent with the July 3, 2012 MRI scan.
He noted that the MRI scan only revealed a “tiny” protrusion at L4-5, no evidence of
radiculopathy, mild degenerative changes, no disc herniation, no evidence of any nerve root
compression, and no evidence of spinal cord compression. Dr. Swartz highlighted that
appellant’s pain drawing from Dr. Sontag’s office contained symmetrical and neat markings in
an orderly fashion which was characteristic of nonorganic pain. He also noted finding many
inconsistencies in his examination that were not medically valid. Dr. Swartz advised that
appellant essentially had a normal examination with no neurologic findings and opined that
3

OWCP had previously accepted low back strain after appellant slipped on coffee at work on May 5, 2003.
Appellant was released to full-duty work on May 16, 2003. This prior claim is not presently before the Board.

2

appellant’s low back complaints had no relation to the February 9, 2012 work incident. He
described the injury as questionable with a possible soft tissue strain that likely subsided within
the first two to three months of the claim or at least by May 9, 2012. Dr. Swartz noted that there
was no further treatment needed and that appellant was overmedicated. He opined that appellant
had no restrictions and was capable of returning to his usual job as a nursing assistant.
By letter dated June 11, 2013, OWCP advised appellant that it proposed a termination of
wage-loss and medical compensation benefits based on the opinion of Dr. Swartz.
Appellant provided a June 10, 2013 report from Dr. Sontag who advised that he had
reviewed Dr. Swartz’ April 3, 2013 report and disagreed with his findings. In response to the
assertion that appellant’s pain drawing had symmetrical marking characteristic of nonorganic
pain, he argued that the pain diagram was consistent with the L4-5 degenerative disc bulge and
foraminal narrowing causing bilateral L4 and L5 pain. Dr. Sontag also disagreed with
Dr. Swartz’ assertion that there was no MRI scan evidence of radiculopathy. He argued that
lumbar radiculopathy is a clinical diagnosis that is arrived at by taking an accurate history
followed by a clinical examination, not based on MRI scan. Dr. Sontag disputed Dr. Swartz’
assessment that appellant was overmedicated with no need for further treatment. He advised that
appellant sustained a significant low back injury that resulted in persistent pain and disability,
which required further treatment, including L4 transformational epidural injections and a
functional restoration pain management program.
In a November 7, 2013 report, Dr. Sontag referred appellant for cognitive behavioral
therapy to treat chronic pain and reactive depression.
In a September 3, 2013 report, Dr. Kimeron Hardin, a psychologist, advised that
appellant continued to work full time, which was painful and difficult. She diagnosed severe
depression and moderate anxiety. Dr. Hardin opined that continuing to work with pain was
exhausting for appellant and that he became depressed in response to working under those
conditions. She also noted that he was on quite a bit of medication which helped him to function
minimally, but the side effects were potentially contributing to his worsening mood and fatigue.
Dr. Hardin continued to submit reports noting appellant’s status.
By letter dated July 9, 2014, OWCP informed appellant that it had found a conflict in the
medical evidence between Dr. Sontag and Dr. Swartz and scheduled a referee examination with
Dr. Charles Sciaroni, a Board-certified orthopedic surgeon. The appointment was schedule for
August 4, 2014. Appellant failed to report for his scheduled referee examination. On
October 30, 2014 OWCP proposed to suspend his medical benefits and compensation for failure
to report to the referee examination.
In a November 5, 2014 report, Dr. Sontag advised that appellant’s condition remained
unchanged and that he continued to experience severe depression and anxiety. He assessed L4-5
and L5-S1 disc bulges, chronic L5 and S1 radicular pain, and severe reactive depression.
Dr. Sontag advised that on February 9, 2012 appellant sustained a severe back injury as a result
of lifting a 300-pound patient. He noted that due to this severe back injury appellant developed

3

severe reactive depression.
Dr. Sontag advised that appellant’s disability started on
September 27, 2014 and would extend through April 27, 2015.4
By decision dated November 13, 2014, OWCP finalized the proposed suspension. In a
November 4, 2014 statement, appellant advised that he had moved to a new address and had not
received any documents notifying him of a scheduled examination. His benefits were restored
and, on November 21, 2014, the referee examination was rescheduled with Dr. Sciaroni on
December 15, 2014.
In a December 16, 2014 report, Dr. Sciaroni noted the history of appellant’s injury and
treatment. On examination, findings included a guarded gait, active lumbar extension of 15
degrees, forward flex with fingertips to distal thighs with pain, and 80 degrees sitting straight leg
raising bilaterally. Motor examination of the lower extremities was normal. Dr. Sciaroni opined
that appellant sustained a lumbar sprain or strain on February 9, 2012 and agreed with Dr. Swartz
that the injury healed within three months or by May 9, 2012 and that none of the treatment and
evaluation since that time was reasonable or necessary. He further opined that appellant’s July 3,
2012 lumbar MRI scan revealed age-appropriate findings and that it was medically probable that
appellant’s symptoms did not relate to the work-related incident. Dr. Sciaroni opined that the
distribution of apparently diminished left trunk and left lower extremity light-touch sensation,
and marked supine restriction of active knee flexion with complaints of low back pain radiating
to the knees was inconsistent with organic disease or any physical degenerative or traumatic
disease process. He also questioned appellant’s credibility given the fact that he denied having
prior back symptoms aside from an episode 25 years prior, yet the record reflected a lumbar
steroid epidural injection in 2008 and a May 15, 2006 lumbar MRI scan. Dr. Sciaroni opined
that Dr. Sontag was treating appellant’s symptoms which were not explainable based on
objective diagnostic testing. He further opined that there were no objective abnormalities on
current musculoskeletal and neurologic examinations and that there was no impairment for
appellant’s regular job as a nursing assistant related to the February 9, 2012 injury.
In a January 14, 2015 report, Dr. Sontag advised that appellant was still experiencing
back pain and posterior left leg pain to the heel. He noted that appellant was very frustrated and
depressed regarding his pain. On examination Dr. Sontag noted lumbar flexion of 45 degrees,
extension to 10 degrees, side bend to the right at 20 degrees, side bend to the left at 10 degrees,
rotation with extension five degrees to the left, and 10 degrees to the right all eliciting pain.
Examination also revealed tenderness to palpation over the midline from L4 to S1 and over the
SI joint and seated straight leg raise test on the right to 80 degrees and 7 degrees of the left both
eliciting pain. Dr. Sontag assessed L4-5 and L5-S1 disc bulges, chronic L5 and S1 radicular pain
and severe reactive depression.
By letter dated January 29, 2015, OWCP proposed to terminate wage-loss and medical
compensation benefits. It advised that the weight of the evidence was represented by
Dr. Sciaroni’s opinion.

4

On October 28, 2014 appellant claimed wage-loss compensation beginning September 22, 2014. OWCP denied
this claim on December 2, 2014.

4

In a February 6, 2015 statement, appellant advised that he wanted to speak to a judge
because he believed that the Department of Labor had discriminated against him by denying his
benefits and that the medical documentation was sufficient to explain his disability. He also
resubmitted Dr. Sontag’s November 5, 2014 report.
In a February 13, 2015 report, Dr. Dimitriy Kondrashov, a Board-certified orthopedic
surgeon, advised that appellant was experiencing worsening back pain radiating into the left
buttocks and leg, numbness in the left anterior thigh, and bilateral knee pain. He noted that
appellant had been disabled from work since August 2014 due to worsening symptoms.
Dr. Kondrashov noted appellant’s treatment history and diagnostic imaging results. On
examination he found that appellant had difficulty getting up from a seated position, moderate
tenderness to palpation in the lumbosacral junction and over the left sacroiliac joint, restricted
lumbar extension, forward flexion down to the knees, core deconditioning, ability to tandem
walk, ability to walk on heels and toes, and weakness in the left-sided quadriceps.
Dr. Kondrashov assessed worsening low back pain, left-sided radicular pain, quadriceps
weakness, and anterior thigh numbness. He requested a lumbar spine MRI scan and radiographs
to clarify neurocompressive pathology.
By decision dated March 9, 2015, OWCP terminated appellant’s compensation benefits
effective March 1, 2015. It found that the weight of medical opinion was represented by
Dr. Sciaroni.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. After it has determined that an employee
has disability causally related to his or her federal employment, it may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.5 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability. 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
FECA provides that, if there is a 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 the examination.7 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP

5

Kenneth R. Burrow, 55 ECAB 157 (2003).

6

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

7

5 U.S.C. § 8123(a).

5

will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.8
It is well established that, when 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.9
ANALYSIS
OWCP originally accepted appellant’s claim for lumbar sprain/strain and radiculitis.
Appellant received medical benefits based on the accepted conditions. OWCP referred appellant
to Dr. Swartz for a second opinion regarding the status of his accepted conditions. Dr. Swartz
advised that appellant essentially had a normal examination with no neurologic findings and
opined that appellant’s low back complaints had no relation to the February 9, 2012 work
incident. He opined that appellant’s soft tissue strain long subsided within the first two to three
months or at least by May 9, 2012. Dr. Swartz noted that there was no further treatment needed
and appellant was capable of returning to his usual job as a nursing assistant. However,
appellant’s treating physician, Dr. Sontag differed in that he advised that appellant sustained a
significant low back injury at work that resulted in persistent pain and disability, which required
further treatment. OWCP found that this created a conflict of medical opinion. Therefore, in
accord with 5 U.S.C. § 8123(a), OWCP properly referred the case to Dr. Sciaroni for a referee
examination and an opinion as to whether appellant continued to have employment-related
residuals.
In his December 16, 2014 report, Dr. Sciaroni reviewed appellant’s history, reviewed the
medical evidence of record, and noted findings on examination. He opined that appellant
sustained a lumbar sprain or strain on February 9, 2012 and indicated that the injury healed
within three months or by May 9, 2012. Dr. Sciaroni noted that appellant’s July 3, 2012 lumbar
MRI scan revealed age-appropriate findings not productive of symptoms and that Dr. Sontag was
treating appellant’s symptoms, which were not explainable based on objective diagnostic testing.
Dr. Sontag explained that the distribution of apparently diminished left trunk and left lower
extremity light-touch sensation, as well as marked supine restriction of active knee flexion with
complaints of low back pain radiating to the knees was inconsistent with organic disease or any
physical degenerative or traumatic disease process. He opined that there were no objective
abnormalities on current musculoskeletal and neurologic examinations and that appellant had no
disability for his regular job related to the February 9, 2012 work injury.
The Board finds that the weight of the medical evidence rests with the well-rationalized
report of Dr. Sciaroni. Dr. Sciaroni’s opinion is based on a complete and accurate factual and
medical history and is entitled to special weight as it is well established that, when 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

8

20 C.F.R. § 10.321.

9

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

6

background, must be given special weight.10 The Board finds that OWCP met its burden of
proof to terminate wage-loss compensation effective March 1, 2015.
In his November 5, 2014 and January 14, 2015 reports, Dr. Sontag assessed L4-5 and
L5-S1 disc bulges, chronic L5 and S1 radicular pain, and severe reactive depression.
Furthermore, he failed to explain how the accepted lumbar strain and radiculitis caused or
aggravated severe reactive depression. This is especially important where Dr. Sontag’s
diagnosed conditions were not accepted by OWCP as employment related.11 The Board has held
that reports from a physician who was on one side of a medical conflict that an impartial
specialist resolved are, generally, insufficient to overcome the weight accorded to the report of
the impartial medical examiner or to create a new conflict.12
On February 13, 2015 Dr. Kondrashov assessed worsening low back pain, left-sided
radicular pain, quadriceps weakness, and anterior thigh numbness. The Board finds that these
reports are of diminished probative value and do not overcome the weight of Dr. Sciaroni’s
report or to create a new medical conflict as they fail to specifically address whether appellant’s
accepted conditions continued.13
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.

10

Id.

11

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the
condition is causally related to the employment injury).
12

I.J., 59 ECAB 408, 414 (2008).

13

Supra note 11.

7

ORDER
IT IS HEREBY ORDERED THAT the March 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8