United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, NORTHERN NEW
JERSEY METRO PROCESSING &
DISTRIBUTION CENTER, Teterboro, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 20-0951
Issued: November 6, 2020

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 28, 2020 appellant filed a timely appeal from a December 27, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 27, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right inguinal
hernia causally related to the accepted August 5, 2019 employment incident.
FACTUAL HISTORY
On August 5, 2019 appellant, then a 59-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his groin while in the performance of duty. He
explained that he was moving pallets on a platform when the pallet jack got stuck under the pallet.
While removing the pallet jack, appellant felt a pain in his groin and, upon further investigation,
he noticed a bump or an air pocket in his groin area. On the reverse side of the claim form, S.G.,
appellant’s supervisor, opined that the bump was preexisting and his pain was due to a preexisting
medical condition. Appellant stopped work that same day.
In an August 5, 2019 diagnostic report, Dr. Sarah Foster, a Board-certified diagnostic
radiologist, performed a computerized tomography (CT) scan of appellant’s abdomen and pelvis.
She noted no acute findings to explain his right groin swelling and found no evidence of a right
inguinal hernia.
In an undated statement, S.G. recounted the August 5, 2019 workday during which
appellant informed him that he had experienced pain near his lower abdominal area after pulling a
hand jack that was stuck under a pallet.
In a development letter dated August 12, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him as to the type of factual and medical evidence needed and
provided a questionnaire for his completion to provide further details regarding the circumstances
of his claimed injury. OWCP also requested a narrative medical report from appellant’s treating
physician, which contained a detailed description of findings and diagnosis, explaining how the
alleged employment incident caused, contributed to, or aggravated his medical condition. It
afforded appellant 30 days to respond.
In an August 7, 2019 post injury evaluation, Dr. Allison Lam, Board-certified in
emergency medicine, checked a box marked “Work-related” to indicate that appellant’s injury was
caused at work and diagnosed a right inguinal hernia. In a health/injury history form of even date,
appellant indicated that he injured his lower abdominal and groin area when he was moving a
pallet and the jack got stuck. He checked a box marked “No” to indicate that he had not had any
treatment in the past for the same injury. In an August 7, 2019 duty status report (Form CA-17),
Dr. Lam made note of appellant’s groin pain caused while pulling a hand jack, diagnosed a right
inguinal hernia, and suggested work restrictions for him.
Dr. Lam, in a medical report of even date, noted appellant’s injury occurred on August 5,
2019 when he was pulling a heavy pallet and experienced groin pain. She also observed that he
underwent surgery in 2016 to repair a hernia. On evaluation Dr. Lam diagnosed a right inguinal
hernia and provided information explaining that the injury occurs when tissues bulge through a
weak spot in the groin area. She stated that hernias may occur after heavy lifting, straining or

2

coughing. In a medical note of even date, Dr. Lam requested that appellant be excused from work
until he can be evaluated by a specialist.
In an August 22, 2019 letter, Dr. Robert Barbalinardo, a Board-certified surgical
oncologist, recounted the history of the alleged August 5, 2019 injury in which a pallet jack got
stuck and appellant attempted to pull it out vigorously and subsequently experienced pain in his
abdomen. He stated that appellant’s past medical history was unremarkable and unrelated to his
current symptoms. On evaluation Dr. Barbalinardo diagnosed a right inguinal hernia and proposed
that he undergo surgery to treat his condition.
Dr. Barbalinardo, in an August 29, 2019 attending physician’s report (Form CA-20),
diagnosed a right inguinal hernia and checked a box marked “Yes” to indicate his opinion that
appellant’s condition was caused by lifting and moving boxes. He recommended that he
performed surgery to treat his hernia and recommended that appellant remain out of work until
October 17, 2019.
By decision dated September 16, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed
condition was causally related to the accepted August 5, 2019 employment incident.
OWCP continued to receive evidence. In an August 5, 2019 medical report, Jeffrey
Heilpern, a registered nurse, evaluated appellant for groin pain and swelling he experienced after
moving a pallet jack that was stuck at work.
In a medical report of even date, Dr. Jennifer Kleven, Board-certified in internal medicine,
evaluated appellant for right groin pain he experienced after performing some heavy lifting at
work. She noted that a CT scan of his groin revealed no hernia and diagnosed right inguinal pain.
In an August 15, 2019 medical report, Dr. Padmavathy Alli, a surgical oncologist,
evaluated appellant for symptoms related to a hernia he developed at work during the August 5,
2019 employment incident. He made note of a previous right inguinal hernia he developed 10 to
15 years prior as well as the surgery he underwent to treat his condition. Dr. Alli diagnosed a right
inguinal hernia and discussed treatment options for appellant.
On October 4, 2019 appellant requested reconsideration of OWCP’s September 16, 2019
decision. He explained that his physician believed that it was heavy lifting at work that caused his
injury as opposed to working with the pallet jack as he believed. Appellant stated that his treating
physician would clear up the misunderstanding and provide further details explaining the
mechanism of injury.
In a September 26, 2019 letter, Dr. Barbalinardo recounted the August 5, 2019
employment incident in which a pallet jack became stuck and appellant experienced pain in his
abdomen and a mass in his groin after several attempts to physically remove it. He diagnosed a
right inguinal hernia and performed surgery to treat the condition on September 23, 2019.
Dr. Barbalinardo opined, upon a reasonable degree of medical certainty, that appellant’s inguinal
hernia may have been the direct result of his attempting to free a pallet jack at work.

3

By decision dated December 27, 2019, OWCP denied modification of its September 16,
2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.9 The opinion of the physician
must be based on a complete factual and medical background, 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.10
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

K.V., Docket No. 18-0723 (issued November 9, 2018).

10

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

4

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right inguinal
hernia causally related to the accepted August 5, 2019 employment incident.
In letters dated August 22 and September 26, 2019, Dr. Barbalinardo recounted the
August 5, 2019 employment incident in which a pallet jack became stuck and appellant
experienced pain in his abdomen and a mass in his groin after several attempts to physically
remove it. He diagnosed a right inguinal hernia and performed surgery on September 23, 2019 in
order to treat his condition. Dr. Barbalinardo opined that appellant’s condition may have been the
direct result of his actions at work in attempting to free the pallet. While he provided an affirmative
opinion on causal relationship, he did not offer any medical rationale sufficient to explain how and
why he believes the August 5, 2019 employment incident could have resulted in or contributed to
appellant’s diagnosed condition. Dr. Barbalinardo’s letters are, therefore, of limited probative
value and insufficient to meet appellant’s burden of proof.12
In an August 29, 2019 Form CA-20, Dr. Barbalinardo diagnosed a right inguinal hernia
and checked a box marked “Yes” to indicate his opinion that appellant’s condition was caused by
lifting and moving boxes. The Board has held that a physician’s opinion on causal relationship
which consists of checking a box marked “Yes” in response to a form question, without
explanation or rationale, is of diminished probative value and is insufficient to establish a claim.13
Without explaining how lifting and moving boxes caused or contributed to appellant’s right
inguinal hernia, Dr. Barbalinardo’s Form CA-20 is of limited probative value.14
In an August 7, 2019 medical report, Dr. Lam noted that appellant’s injury occurred on
August 5, 2019 when he was pulling a heavy pallet and experienced groin pain. She diagnosed a
right inguinal hernia and provided information explaining that hernias may occur after heavy
lifting, straining, or coughing. Dr. Lam also noted that appellant underwent surgery in 2016 in
order to repair a hernia. Medical opinions that suggest that a condition “may” or was “likely”
caused by work activities are speculative or equivocal in character and have limited probative

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); J.L.,
Docket No. 20-0717 (issued October 15, 2020).
12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

See J.R., Docket No. 18-1679 (issued May 6, 2019); M.C., Docket No. 18-0361 (issued August 15, 2018);
Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).
14

Supra note 12.

5

value.15 Without explaining how pulling a heavy pallet caused or contributed to appellant’s right
inguinal hernia, Dr. Lam’s August 7, 2019 is of limited probative value.16 Additionally, the Board
has held that a well-rationalized opinion is particularly warranted when there is a history of a
preexisting condition, as in this case.17 For these reasons, Dr. Lam’s medical report is insufficient
to meet appellant’s burden of proof.
Dr. Lam’s remaining medical evidence consisted of various forms dated August 7, 2019 in
which she diagnosed a right inguinal hernia and checked a box marked “Work related” to indicate
that appellant’s injury was caused at work. As stated previously, the Board has held that a
physician’s opinion on causal relationship which consists of an affirmative opinion in response to
a form question, without explanation or rationale, is of diminished probative value and is
insufficient to establish a claim.18 For this reason, Dr. Lam’s remaining medical evidence is
insufficient to meet appellant’s burden of proof.
In an August 15, 2019 medical report, Dr. Alli evaluated appellant for his right inguinal
hernia and noted that he previously underwent surgery approximately 10 to 15 years prior to treat
a right inguinal hernia. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition or disability is of no probative value on the issue
of causal relationship.19 Additionally, the Board has held that a well-rationalized opinion is
particularly warranted when there is a history of a preexisting condition, as in this case.20 For these
reasons, Dr. Alli’s medical report is insufficient to meet appellant’s burden of proof.
In an August 5, 2019 medical report, Dr. Kleven evaluated appellant for right groin pain
he experienced after performing some heavy lifting at work. She noted that a CT scan of his groin
revealed no hernia and diagnosed right inguinal pain. The Board has held that the assessment of
pain is not considered a diagnosis, as pain merely refers to a symptom of an underlying condition.21
A medical report lacking a firm diagnosis and a rationalized medical opinion regarding causal

15

The Board has held that speculative and equivocal medical opinions regarding causal relationship have no
probative value. R.C., Docket No. 18-1695 (issued March 12, 2019); see Ricky S. Storms, 52 ECAB 349 (2001) (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).
16

Supra note 12.

17

Supra note 11.

18

Supra note 14.

19

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

20

Supra note 11.

21

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
rather than a compensable medical diagnosis. See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket
No. 08-1102 (issued October 10, 2008).

6

relationship is of no probative value.22 For this reason, Dr. Kleven’s August 5, 2019 medical
report is insufficient to meet appellant’s burden of proof.
In an August 5, 2019 diagnostic report, Dr. Foster performed a CT scan of appellant’s
abdomen pelvis. She noted not acute findings to explain his right groin swelling and found no
evidence of a right inguinal hernia. The Board has held that diagnostic studies, standing alone,
lack probative value as to the issues of causal relationship as they do not address whether the
employment incident caused the diagnosed condition.23 For this reason, Dr. Foster’s August 5,
2019 diagnostic report is insufficient to meet appellant’s burden of proof.
The remaining medical evidence consists of an August 5, 2019 medical report from Jeffrey
Heilpern, a registered nurse. The Board has consistently held that certain healthcare providers
such as physician assistants, registered nurses, physical therapists, and social workers are not
considered physician[s] as defined under FECA.24 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.25
As appellant has not submitted rationalized medical evidence establishing that his right
inguinal hernia is causally related to the accepted August 5, 2019 employment incident, the Board
finds that he has not met his burden of proof to establish his 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 met his burden of proof to establish a right inguinal
hernia causally related to the August 5, 2019 employment incident.

22

P.C., Docket No. 18-0167 (issued May 7, 2019).

23

M.L., Docket No. 18-0153 (issued January 22, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).

24

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); 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).
25
Id.; see also R.L., Docket No. 19-0440 (issued July 8, 2019) nurse practitioners are not considered physicians as
defined under FECA).

7

ORDER
IT IS HEREBY ORDERED THAT the December 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2020
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, QUEENS VEHICLE
PLANT FACILITY, Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0294
Issued: May 29, 2019

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 November 24, 2018 appellant, through counsel, filed a timely appeal from an
August 16, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to 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.

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 counsel did not appeal an October 1, 2018 merit decision which denied authorization of
appellant’s request to undergo total knee arthroplasty or an OWCP merit decision dated October 16, 2018, which
denied modification of the October 1, 2018 decision. Counsel appealed only the merit OWCP decision dated
August 16, 2018. Therefore, the Board lacks jurisdiction to review the October 1 and 16, 2018 OWCP merit decisions
on this appeal. See 20 C.F.R. § 501.3.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include bilateral conditions of knee osteoarthritis, tear of the
meniscus, and sprain of the ACL, and a right condition of knee rupture of the ACL causally related
to his accepted March 24, 2017 employment injuries.
FACTUAL HISTORY
On March 24, 2017 appellant, then a 50-year-old auto technician mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on that same day he sustained injuries to his
knees, shin, and chest while in the performance of duty. He stopped work on March 27, 2017 and
has not returned to work. In an accompanying narrative statement dated March 29, 2017, appellant
noted that on March 24, 2017 he and a coworker had loaded a vehicle bumper into his truck and
as he went to move his truck, his pants caught onto the bumper. He claimed that he went flying
down onto the bumper hitting both of his knees, the left side of his chest, and right shin. Appellant
reported the incident and his injuries to his supervisor on the date of injury.
In support of his claim, appellant submitted a medical report dated March 28, 2017 from
Dr. Kioomars Moosazadeh, a Board-certified physiatrist. Dr. Moosazadeh noted that appellant
was treated for employment-related bilateral knee injuries sustained on March 24, 2017. He
advised that appellant was totally disabled and was unable to return to work until further notice.
OWCP subsequently received additional reports dated March 28 and May 4 and 8, 2017
by Dr. Moosazadeh. In his reports, Dr. Moosazadeh discussed physical examination findings,
diagnosed sprain of the anterior cruciate ligament of both knees, and again found that appellant
was totally disabled and could not return to work until further notice. In the May 8, 2017 attending
physician’s report (Form CA-20) he checked a box marked “yes” indicating that the diagnosed
condition was caused or aggravated by the claimed March 24, 2017 employment injury.
In a development letter dated June 2, 2017, OWCP notified appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed to establish his claim
and provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In a June 1, 2017 report, Dr. Moosazadeh continued to indicate that appellant was totally
disabled and that he was unable to work until further notice.
A magnetic resonance imaging (MRI) scan of appellant’s left knee was performed on
May 24, 2017 by Dr. David Milbauer, a Board-certified diagnostic radiologist. Dr. Milbauer
provided impressions of nondisplaced peripheral tear of the body of the medial meniscus, segments
of chondral thinning and fissuring involving the medial femoral condyle and lateral tibial plateau,
diffuse patellar chondral thinning and deep fissuring involving the medial and lateral patellar facets
and segment of full-thickness chondral loss within the femoral trochlea centrally, and small joint
effusion, synovitis beneath the ITB and minimal inflammatory changes of the pes anserine bursa.
He also performed a right knee MRI scan on the same date. Dr. Milbauer provided impressions
of peripheral undersurface tear of the posterior horn of the medial meniscus, torn anterior cruciate
ligament, segments of patellofemoral chondral loss including full-thickness chondral loss along
the medial patellar facet, localized segment of chondral thinning/fissuring involving the medial
2

femoral condyle and small focal chondral defect of the lateral tibial plateau centrally, and small
joint effusion/synovitis and popliteal cyst.
In a report dated June 6, 2017, Dr. Stephen J. Nicholas, a Board-certified orthopedic
surgeon, noted a history that appellant was injured on the job when he fell off a truck. He provided
examination findings and reviewed diagnostic test results. Dr. Nicholas also provided assessments
of severe osteoarthritis and tear of the meniscus of the bilateral knees and rupture of the anterior
cruciate ligament (ACL) of the right knee.
On June 15, 2017 appellant responded to OWCP’s development letter. He explained his
delay in seeking medical treatment. Appellant claimed that he had contusions on his bilateral
knees, right shin, and the left side of his chest. He treated his conditions with ice and ibuprofen.
Appellant maintained that he had no prior injury or symptoms.
Appellant submitted reports dated March 28 through June 19, 2017 by Dr. Moosazadeh
who again noted the March 24, 2017 work incident, provided examination findings, reviewed
diagnostic test results, and addressed appellant’s treatment plan.
On July 12, 2017 OWCP accepted appellant’s claim for abrasion and contusion of the left
knee.
By decision dated July 13, 2017, OWCP denied expansion of the acceptance of appellant’s
claim to include additional conditions of bilateral knee osteoarthritis, tear of the meniscus, and
sprain of the ACL, and right knee rupture of the ACL. It found that the medical evidence of record
was insufficient to establish that these conditions were causally related to the accepted March 24,
2017 employment-related incident.
In a July 11, 2017 report, Dr. Moosazadeh continued to opine that appellant was totally
disabled from work and that he could not return until further notice.
Dr. Steven Touliopoulos, an attending Board-certified orthopedic surgeon, in a July 11,
2017 report, requested authorization for bilateral knee synvisc-one injections. He noted that
appellant remained totally disabled. Dr. Touliopoulos further noted that, if he did not respond
appropriately to conservative treatment, then he would likely be a candidate for bilateral total knee
arthroplasty. In an August 15, 2017 report, he noted a history of the accepted March 24, 2017
employment injuries and examination findings. Dr. Touliopoulos provided impressions of left
knee meniscal tear, chondral injuries, and aggravation of underlying degenerative joint disease;
right knee ACL and medial meniscal tears, chondral injuries, and aggravation of underlying
degenerative joint disease; right shin injury rule out muscle fascial defect versus post-traumatic
ﬁbroma versus further derangement; and consequential right shoulder impingement syndrome rule
out labral, capsule, and rotator cuff injuries consequentially related to a fall caused by right knee
dysfunction resulting from appellant’s work accident.
OWCP, by decision dated August 25, 2017, denied appellant’s claims for leave without
pay commencing May 8, 2017 causally related to his accepted March 24, 2017 employment
injuries. It found that the medical evidence of record was insufficient to establish disability
commencing May 8, 2017.

3

On August 29, 2017 appellant requested reconsideration of OWCP’s July 13, 2017
decision which had denied expansion of the acceptance of his claim.
In an October 10, 2017 report, Dr. Touliopoulos found that appellant was totally disabled
and that he was unable to work until further notice. In a report dated November 10, 2017, he
reiterated his prior diagnoses.
Undated reports from appellant’s physical therapist indicated that appellant was evaluated
in October 2017.
By decision dated November 27, 2017, OWCP denied modification of its July 13, 2017
decision. It found that the medical evidence submitted did not contain a rationalized opinion
causally relating appellant’s additional diagnosed medical conditions to the accepted March 24,
2017 employment injury.
In reports dated November 28, 2017 and January 15, 2018, Dr. Touliopoulos reiterated his
prior bilateral knee, right shin, and right shoulder diagnoses and his opinion that the conditions
were causally related to the accepted March 24, 2017 employment injuries. In a separate report of
the same date and in a January 15, 2018 report, he also reiterated that appellant was totally disabled
and was unable to return to work until further notice.
In a letter dated January 18, 2018, OWCP referred appellant, together with a statement of
accepted facts (SOAF), the medical record, and a set of questions, to Dr. Timothy Henderson, a
Board-certified orthopedic surgeon, for a second opinion to determine whether he continued to
suffer from residuals of his accepted work-related conditions.
In a report dated February 2, 2018, Dr. Henderson reviewed appellant’s history of injury
and medical records, and noted examination findings. He advised that his work-related conditions
had not resolved as there was evidence to support that these conditions were still active and causing
noted objective findings. Dr. Henderson advised that additional medical recovery should be
expected as maximum medical improvement (MMI) had not been obtained. He indicated that
appellant’s prognosis was fair and that he was a candidate for left total knee replacement followed
by six weeks of postoperative physical therapy treatment, three times a week if medical clearance
could be obtained as he was overweight. Dr. Henderson found that, based on clinical presentation,
he was not currently capable of returning to his date-of-injury job as an auto technician mechanic.
Appellant could return to work with restrictions in a sedentary position. Dr. Henderson completed
a work capacity evaluation (Form OWCP-5c), which set forth appellant’s work restrictions.
OWCP requested, by letter dated February 13, 2018, that Dr. Henderson submit a
supplemental report with detailed medical rationale in support of his opinion that appellant
continued to suffer from residuals of his accepted conditions. In a letter dated February 14, 2018,
Dr. Henderson advised that appellant was not currently suffering from the accepted conditions of
left knee contusion and abrasion. He had a severe exacerbation or aggravation of preexisting left
knee osteoarthritis and compensatory aggravation of right knee osteoarthritis. Dr. Henderson
related findings of a left knee MRI scan. He determined that appellant had reached MMI from his
March 24, 2017 injury, however, appellant had a severe exacerbation or aggravation of left knee
osteoarthritis and now required a left total knee replacement. Dr. Henderson maintained that he
was not able to perform the full duty of his employment due to preexisting and nonwork-related

4

osteoarthritis. He indicated that appellant had a history of osteoarthritis of both knees and was
previously able to perform the full duty of his employment, although the work-related injury had
severely exacerbated or aggravated his left knee osteoarthritis.
On March 1, 2018 appellant, through counsel, requested reconsideration of OWCP’s
July 13, 2017 decision and submitted medical evidence. In a report dated January 3, 2018,
Dr. Touliopoulos continued to note a history of the accepted March 24, 2017 employment injuries.
He also noted that at the end of June 2017 appellant’s right knee buckled at home, which caused
him to fall and develop right shoulder derangement. Dr. Touliopoulos related that the right knee
would not have buckled if not for his March 24, 2017 right knee injury. He reiterated his prior
clinical impressions. Dr. Touliopoulos opined that the diagnosed conditions were causally related
to the accepted employment injury. He explained that the knee was comprised of four major
ligaments which were critical to the stability of the knee as they attached bones of the knee joint
together, the femur and the tibia. Dr. Touliopoulos explained that ACL injuries occurred when the
tibia was pushed forward in relation to the femur or a twisting injury. He maintained that this was
consistent with appellant banging his right knee into the metal ﬂoor. Dr. Touliopoulos related that
an acute tear occurred when the knee was bent and forcefully twisted, while the leg was in a weightbearing position. A torn meniscus could occur because of trauma caused by forceful twisting or
hyperﬂexing of the knee joint. Dr. Touliopoulos maintained that this was consistent with the injury
described by appellant where his knee was bent when his pants were caught on the metal bumper
causing him to fall and hit his right knee on the metal floor and his left knee on the metal bumper
resulting in hyperextension of both knees.
Dr. Touliopoulos noted the definition of arthritis and related that the most common type
was the wearing out of joint surface cartilage (osteoarthritis). He related that while the wearing
away process did not result from appellant’s accident when he hyperextended his knees and the
right knee banged into the metal ﬂoor and the left knee banged into the metal bumper, that incident
could aggravate and accelerate the osteoarthritic condition in his knees. Dr. Touliopoulos further
related that the right shoulder injuries were consequentially related to his intervening injury that
occurred at the end of June 2017. He noted that as he had noted above, an injury to a ligament
could cause articular cartilage to break off and ﬂoat around in the knee as loose bodies causing the
knee to lock. Dr. Touliopoulos maintained that, in appellant’s case, the locking of his knee caused
it to buckle and fall onto his right shoulder as he was descending steps by his home. When
appellant fell and landed on his shoulder an intervening injury occurred resulting in right shoulder
derangement. Dr. Touliopoulos described impingement syndrome of the shoulder and maintained
that this was consistent with appellant’s June 2017 fall resulting from his knee locking up due to
his March 24, 2017 employment injury. He advised that double knee replacement was medically
necessary due to the extent of injury to his knees.
OWCP received additional reports dated February 27 and March 27, 2018 by
Dr. Touliopoulos who continued to reiterate his clinical impressions and opinions regarding causal
relationship of additional medical conditions and appellant’s total disability.
In a letter dated April 4, 2018, OWCP requested that Dr. Henderson clarify his
February 14, 2018 opinion that the accepted March 24, 2017 employment injury had aggravated
appellant’s preexisting left knee osteoarthritis. On April 16, 2018 it was informed that
Dr. Henderson was no longer practicing.

5

On April 17, 2018 OWCP referred appellant to Dr. Andrew E. Farber, a Board-certified
orthopedic surgeon, for a second opinion.
In a report dated April 30, 2018, Dr. Farber reviewed the SOAF and appellant’s history of
injury and medical records, and noted examination findings. He indicated that appellant fell onto
both of his knees. Appellant related to him that he had a subsequent injury a few months later. He
was walking down steps when his right knee locked. Appellant fell onto a concrete ﬂoor injuring
his shoulder. He had been advised that he required a total knee arthroplasty. Appellant related
that he had prior right shoulder injury approximately 18 years ago, but he had no issue after that
injury. Dr. Farber noted that he denied any other knee injuries. He related that the medical records
revealed underlying degenerative change in his knees and that his fall resulted in worsening or
aggravation of this pathology. Dr. Farber noted that his examination revealed diffuse tenderness
about both knees. There was a palpable effusion about both knees and no gross instability. Flexion
and extension was 5/5 bilaterally globally. There was 0 degrees of extension and 100 degrees of
flexion on the right, 0 to 95 degrees on the left with discomfort in just about any motion (normal
was 0 to 150). A Lachman test did not reveal a ﬁrm end point on either knee, although the
examination was somewhat limited secondary to discomfort. A McMurray’s test was equivocal
due to discomfort. At the conclusion of the examination appellant stepped down with discomfort
from the examination table and did not use a cane for ambulation. He was unsuccessfully treated
with a signiﬁcant course of conservative treatment, including physiotherapy and viscosupplementation. Dr. Farber indicated that appellant’s subjective complaints corresponded with
his objective findings. He discussed the results of a left knee MRI scan. Dr. Farber opined that
the accepted work-related condition of left knee contusion and left knee abrasion had resolved. He
maintained that there was no evidence to support that the work conditions were still active and
causing objective findings. Dr. Farber also maintained that no further treatment was indicated for
the accepted work conditions. He noted that appellant was not currently working in any capacity,
but that he could perform sedentary work. Dr. Farber related that he had moderate disability that
was related to his preexisting osteoarthritis and not to his accepted work conditions. He completed
an OWCP-5c form, which set forth appellant’s work restrictions.
On May 29, 2018 OWCP requested that Dr. Farber submit a supplemental report clarifying
whether the additional conditions of osteoarthritis, meniscus tear, and ACL sprain of the bilateral
knees, and rupture of the ACL of the right knee were caused or aggravated by the March 24, 2017
work injury.
In a May 29, 2018 report, Dr. Touliopoulos continued to opine that appellant was
indefinitely totally disabled from work.
In a letter dated June 1, 2018, Dr. Farber opined that, based on the history provided and the
SOAF, appellant fell on his left knee loading a bumper into a truck. He related that there was no
objective evidence to support additional diagnosis other than left knee contusion and left knee
abrasion. Dr. Farber noted that appellant had a history of prior left knee arthroscopy and additional
work injuries involving the left knee with a diagnosis of sprain. He concluded that an additional
diagnosis would not be in relation to this work injury.
Dr. Touliopoulos, in a June 26, 2018 report, reiterated his opinion that appellant was
indefinitely totally disabled from work.

6

On July 19, 2018 OWCP requested that Dr. Farber review an updated SOAF4 and provide
a supplemental report indicating whether it impacted his prior responses.
Dr. Farber, in a letter dated July 26, 2018, related that upon his review of the updated
SOAF, medical records, and appellant’s history, his previously submitted determination remained
unchanged. He noted that appellant had preexisting osteoarthritis. There were underlying
degenerative changes in his knees. Dr. Farber continued to opine that appellant’s work-related
conditions had resolved and that he could return to work in a sedentary position.
By decision dated August 16, 2018, OWCP denied modification of its July 13, 2017
decision. It found that the weight of the medical opinion evidence rested with the opinion of
Dr. Farber and established that appellant had not sustained additional medical conditions causally
related to his accepted March 24, 2017 employment injuries.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment injury.6
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.7
When 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.8 To establish causal relationship between the condition, as well
as any attendant disability claimed and the employment event or incident, the employee must
submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such a causal relationship.9 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

The updated SOAF noted, among other things, appellant’s prior claims. In appellant’s claim assigned OWCP File
No. xxxxxx447, OWCP accepted that he sustained left knee strain on September 10, 2004. It accepted that he
sustained a lumbar sprain on September 8, 2009 under his assigned OWCP File No. xxxxxx468. OWCP accepted
appellant’s claim assigned OWCP File No. xxxxxx804 for a left shoulder impingement and cervical strain sustained
on June 2, 2012.
4

5

Supra note 3.

6

See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

9

See S.A., Docket No. 18-0399 (issued October 16, 2018).

7

between the diagnosed condition and the specific employment factors identified by the claimant.10
The weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.11
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.”12 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.13
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP accepted that appellant sustained an abrasion and a contusion of the left knee on
March 24, 2017 when his knees struck a vehicle bumper. In reports dated August 15, 2017 through
February 27, 2018 Dr. Touliopoulos, appellant’s attending physician, noted a history of the
accepted March 24, 2017 employment injuries. He examined appellant and provided impressions
of left knee meniscal tear, chondral injuries, and aggravation of underlying degenerative joint
disease, right knee ACL and medial meniscal tears, chondral injuries, and aggravation of
underlying degenerative joint disease, right shin injury rule out muscle fascial defect versus posttraumatic ﬁbroma versus further derangement, and consequential right shoulder impingement
syndrome rule out labral, capsule, and rotator cuff injuries. Dr. Touliopoulos opined that
appellant’s conditions were a consequence of the accepted employment injuries. In his January 3,
2018 report, he explained how the accepted work injuries caused or aggravated the diagnosed
conditions. Dr. Touliopoulos maintained that bilateral knee replacement surgery was medically
warranted.
By contrast Dr. Farber, an OWCP referral physician, opined in his report dated April 30,
2018 that appellant’s employment-related left knee contusion and abrasion had resolved and that
appellant could return to sedentary work with restrictions. He further concluded, in reports dated
June 1 and July 26, 2018, that appellant had not sustained additional medical conditions as a result
of the March 24, 2017 work injuries.
Both Dr. Touliopoulos and Dr. Faber provided a description of the employment injuries
and both provided rationale for their respective findings based on their review of the medical
evidence and their physical findings. The Board, therefore, finds that a conflict in medical opinion
exists regarding whether appellant’s bilateral knee osteoarthritis, tear of the meniscus, and sprain
10

See P.M., Docket No. 18-0287 (issued October 11, 2018).

11

F.H., supra note 6.

12

5 U.S.C. § 8123(a).

13

See Darlene R. Kennedy, 57 ECAB 414 (2006).

8

of the ACL, and right knee rupture of the ACL were causally related to the accepted work injuries
of March 24, 2017.14
OWCP’s regulations provide 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.15 The Board will
thus remand the case to OWCP for referral to an impartial medical examiner regarding whether
the acceptance of appellant’s claim should be expanded to include bilateral knee osteoarthritis, tear
of the meniscus, and sprain of the ACL, and right knee rupture of the ACL.16 Following this and
any such further development as may be deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 16, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 29, 2019
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

14

See E.C., Docket No. 18-0780 (issued October 11, 2018); W.B., Docket No. 17-1994 (issued June 8, 2018).

15

5 U.S.C. 8123(a); see also G.K., Docket No. 16-1119 (issued March 16, 2018).

16

See E.C., supra note 14; P.S., Docket No. 17-0802 (issued August 18, 2017).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Centereach, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-843
Issued: November 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2012 appellant, through her attorney, filed a timely appeal of an October 17,
2011 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 the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
effective March 10, 2011 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On March 20, 2003 appellant, then a 35-year-old letter carrier, filed a Form CA-2a
alleging that she sustained a recurrence of disability on March 4, 2003 that was due to her

1

5 U.S.C. § 8101 et seq.

November 30, 2002 injury.2 OWCP treated this as a new injury claim and accepted it for
aggravated post-traumatic stress disorder in File No. xxxxxx950. Appellant then injured her left
foot on April 25, 2006 while in the performance of duty. She stopped work, did not return and
eventually underwent left ankle arthroscopy on July 30, 2007 and partial left plantar fasciotomy
on November 16, 2009. OWCP accepted appellant’s traumatic injury claim, assigned File No.
xxxxxx516, for left ankle sprain.3 It subsequently combined the claims under File No.
xxxxxx516. Appellant received wage-loss compensation and medical benefits accordingly.
OWCP referred appellant to three physicians to determine whether she was able to return
to work.4 Dr. Alain De La Chapelle, a Board-certified psychiatrist and second opinion physician,
reviewed the July 21, 2010 statement of accepted facts and medical file, conducted a mental
status examination and noted limited reactive affect. Appellant complained of general anxiety,
nightmares, flashbacks, irritability and dysphoric mood due to pain, unemployment and loss of
function. Dr. De La Chapelle diagnosed post-traumatic stress disorder and depressive disorder.
He attributed appellant’s symptoms to the March 4, 2003 recurrence and an ankle fracture in
2007. In an August 10, 2010 work capacity evaluation form, Dr. De La Chapelle advised that
she was able to perform her regular job on a part-time basis to minimize stress.
In a September 7, 2010 report, Dr. Peter Warwick Green, a Board-certified orthopedic
surgeon and second opinion physician, reviewed the October 30, 2008 statement of accepted
facts and August 10, 2010 addendum as well as the medical file. A physical examination of the
left foot revealed multiple surgical scars, limited dorsiflexion and plantar flexion and positive
Tinel’s sign. Dr. Green opined that appellant was partially disabled as a result of the April 25,
2006 employment injury and “not capable of returning to work as a letter carrier.” He
recommended eight-hour workdays consisting of sedentary tasks and intermittent standing and
walking. October 21 and 27, 2010 progress notes added that an October 6, 2010 electromyogram
(EMG) and nerve conduction study ruled out tarsal tunnel syndrome. In an October 27, 2010
work capacity evaluation form, Dr. Green restricted walking and standing to 30 minutes each and
pushing, pulling and lifting of items weighing up to 10 pounds to one hour each. He also
prohibited squatting, kneeling, climbing and operating a motor vehicle on the job.
In a September 21, 2010 report, Dr. Solomon Miskin, a Board-certified psychiatrist,
related that appellant experienced aversion, avoidance, preoccupation, intrusive thoughts,
automatic hyper-responsiveness and exaggerated startle response, inter alia, following the
March 4, 2003 recurrence. After the April 25, 2006 work injury, appellant complained of pain,
2

On November 30, 2002 appellant developed an emotional condition, which OWCP accepted for a prolonged
reaction to stress in File No. xxxxxx597. By decision dated November 13, 2005, OWCP denied her claim that she
sustained a recurrence of disability on August 10, 2005. Claim number xxxxxx597 is not presently before the
Board.
3

The foregoing facts were incorporated into October 30, 2008 and July 21, 2010 statements of accepted facts as
well as an August 10, 2010 addendum.
4

The record indicates that the employing establishment offered appellant the position of modified letter carrier
effective April 6, 2010. In a May 7, 2010 letter, OWCP noted that the duties and physical requirements delineated
in the offer were based on medical reports from 2008. In view of appellant’s authorized November 16, 2009
surgery, it advised that updated findings were required to properly assess job suitability.

2

limited mobility and frustration concerning her diminished physical capability. Dr. Miskin
performed a mental status examination and observed anxiety, apprehension and dysphoric mood.
He reviewed the October 30, 2008 statement of accepted facts, an August 10, 2010 addendum
and the medical file and diagnosed major depressive disorder and post-traumatic stress disorder
aggravated by the April 25, 2006 work injury. Dr. Miskin explained that appellant’s psychiatric
condition adversely affected her ability to interact with the public and advised that she be
removed from mail deliveries. In an October 6, 2010 work capacity evaluation form, he
approved work inside the postal facility for eight hours a day.
On December 1, 2010 the employing establishment offered appellant the position of
modified letter carrier, which entailed casing mail at work for up to six hours. The physical
requirements included intermittent sitting, standing, reaching above shoulder level and lifting for
up to six hours. OWCP informed the employing establishment in a December 10, 2010 letter
that the offer needed to specify the number of hours allocated to standing, sitting and lifting,
respectively and the weight of the mail or the approximate number of pieces to be cased. In an
amended December 16, 2010 job offer, the employing establishment reduced the workday to
four hours and revised the physical requirements to limit sitting, standing and walking to a
four-hour maximum and intermittent reaching above the shoulder and lifting of items weighing
less than 10 pounds to a four-hour maximum. Appellant rejected the amended offer.
In December 16, 2010 letter, OWCP informed appellant that the medical evidence
established that she was partially disabled and the modified letter carrier position was suitable in
light of her physical capabilities. It gave her 30 days to accept the position without penalty or
provide an explanation justifying her refusal.
Appellant asserted in an undated letter that the job offered was unsuitable because nerve
damage in her left foot inhibited her ability to stand for a prolonged period. She submitted
medical records from Dr. George G. Fairey, a Board-certified psychiatrist, for the period
November 30, 2010 to January 11, 2011 that detailed ongoing anxiety, depression, pain and total
disability, inter alia.5
OWCP informed appellant in a January 18, 2011 letter that she failed to provide a valid
reason for refusing the letter carrier position and afforded her 15 days to accept the job offer.
In October 26 and November 23, 2010 reports, Dr. Tejpreet Singh, a Board-certified
neurologist, examined appellant and observed left foot dorsal swelling, positive Tinel’s signs
over the superficial peroneal and tibial nerves, hyperesthesia and antalgic gait. An EMG showed
left peroneal and tibial nerve slowing. Dr. Singh diagnosed unspecified neuralgia/neuritis and
possible reflex sympathetic dystrophy/complex regional pain syndrome. In a December 21, 2010
follow-up report, he advised that appellant was unable to stand continuously for 20 to 30 minutes
and needed intermittent breaks.6 A January 7, 2011 work capacity form later clarified that she
was unable to work indefinitely.

5

OWCP later received Dr. Fairey’s various reports and session notes from March 24, 2010 to October 12, 2011.

6

OWCP later received Dr. Singh’s reports for the period January 21 to April 22, 2011 reports.

3

By decision dated March 10, 2011, OWCP terminated appellant’s wage-loss
compensation on the grounds that she refused an offer of suitable work.
Counsel requested reconsideration on June 30, 2011 contending that OWCP did not
discharge its burden of proof to terminate appellant’s wage-loss compensation in light of the
medical evidence.7
On October 17, 2011 OWCP denied modification of the March 10, 2011 decision.
LEGAL PRECEDENT
OWCP may terminate compensation for any partially-disabled employee who refuses or
neglects to work after suitable work is offered to, procured by or secured for him or her.8 To
meet its burden to justify termination, it must show that the job offered was suitable, the
employee was informed of the consequences of refusing to accept such employment and the
employee was afforded a reasonable period to accept or reject the position or submit evidence or
reasons why the position was not suitable and could not be accepted.9
The threshold issue is whether the position offered by the employing establishment is
suitable.10 In determining what constitutes suitable work for a particular disabled employee,
OWCP 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. The issue of whether an employee has the physical ability
to perform a modified position is primarily a medical question that must be resolved by medical
evidence. Once OWCP 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.11
When OWCP considers a job to be suitable, it shall notify the employee and afford him
or her 30 days to either accept the job or present any reasons to counter its finding. If it
determines that the reasons are unacceptable, it shall notify the employee and afford him or her
15 days to accept the job without penalty. After providing these 30-day and 15-day notices,
OWCP will terminate the employee’s entitlement to further compensation. However, the
employee remains entitled to medical benefits.12

7

Counsel alternatively argued that: (1) OWCP improperly doubled appellant’s claims; and (2) OWCP shopped
for a favorable medical opinion.
8

5 U.S.C. § 8106(c)(2). The Board has recognized that section 8106(c) of FECA serves as a penalty provision as
it may bar an employee’s entitlement to future compensation and, for this reason, will be narrowly construed.
Stephen A. Pasquale, 57 ECAB 396, 402 (2006).
9

M.M., 59 ECAB 680, 683 (2008). See also 20 C.F.R. § 10.515 et seq.

10

Martha A. McConnell, 50 ECAB 129 (1998).

11

L.C., Docket No. 08-1923 (issued May 13, 2009).

12

S.G., Docket No. 08-1992 (issued September 22, 2009).

4

ANALYSIS
OWCP accepted that appellant sustained prolonged reaction to stress, aggravated
post-traumatic stress disorder and left ankle sprain while in the performance of duty and
subsequently combined the claims under File No. xxxxxx516. It referred her to three separate
physicians to determine whether she was able to return to work. Drs. De La Chapelle and
Miskin, both Board-certified psychiatrists, each opined in their respective August 3 and
September 21, 2010 reports that appellant had emotional symptoms related to her employment
injuries. In an August 10, 2010 work capacity evaluation form, Dr. De La Chapelle
recommended a part-time schedule to reduce stress. In an October 6, 2010 work capacity
evaluation form, Dr. Miskin specified reassignment from mail delivery to a position inside the
postal facility to limit interaction with the public. Dr. Green, a Board-certified orthopedic
surgeon, opined in a September 7, 2010 report that appellant remained partially disabled due to
the April 25, 2006 work injury and was unable to physically perform the tasks of a letter carrier.
He thereafter advised that she be placed on sedentary duty and imposed the following restrictions
in an October 27, 2010 work capacity evaluation form: 30 minutes of walking, 30 minutes of
standing, one hour of pushing items weighing up to 10 pounds, one hour of pulling items
weighing up to 10 pounds, one hour of lifting items weighing up to 10 pounds and no squatting,
kneeling, climbing or driving on the job.
On December 1, 2010 the employing establishment offered appellant the job of casing
mail as a modified letter carrier, which involved intermittent sitting, standing, reaching above
shoulder level and lifting for up to six hours while casing mail. After OWCP requested
additional details about the physical requirements, the employing establishment revised the job
offer to limit sitting, standing and walking to four hours and intermittent reaching above the
shoulder and lifting of items weighing less than 10 pounds to four hours. It determined that this
position was suitable, followed its procedures by issuing 30-day and 15-day notices to appellant
and then terminated her wage-loss compensation.
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation.
As noted, the threshold issue is whether the position offered by the employing establishment is
suitable. In this case, the modified letter carrier job was part time and performed indoors, which
conformed to Drs. De La Chapelle and Miskin’s restrictions pertaining to appellant’s emotional
condition.13 However, as written, the physical requirements specify up to four hours of walking
and standing as well as four hours of lifting items weighing up to 10 pounds. These exceed the
limits set by Dr. Green in his October 27, 2010 work capacity evaluation form. Because
appellant was not physically capable of performing the duties of a modified letter carrier, the
position was not suitable.14

13

See D.B., Docket No. 07-854 (issued September 11, 2007) (an employee’s psychological impairments must be
considered in conjunction with his or her physical limitations when determining whether an offered position is
suitable).
14

See, e.g., T.S., 59 ECAB 490 (2008). Since OWCP did not demonstrate job suitability, the Board finds it
unnecessary to address the medical evidence appellant submitted after she received the December 16, 2010 notice.

5

CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
on the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the October 17, 2011 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: November 8, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 13-1326
Issued: November 8, 2013

Case Submitted on the Record

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

JURISDICTION
On May 15, 2013 appellant, through counsel, timely appealed the February 19, 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 the schedule award claim.
ISSUE
The issue is whether appellant has greater than eight percent impairment of the right
upper extremity.
FACTUAL HISTORY
Appellant, a 47-year-old letter carrier, has an accepted claim for right shoulder, cervical
and thoracic strains. Her injury occurred on April 29, 2002 while lifting a mailbag over her right

1

5 U.S.C. §§ 8101-8193.

shoulder. Appellant received wage-loss compensation. Effective July 20, 2004, OWCP
terminated all further benefits on the basis that her accepted sprains had resolved.2
By decision dated March 23, 2011, appellant received a schedule award for eight percent
impairment of the right upper extremity (RUE).3 OWCP based the award on the March 14, 2011
findings of its district medical adviser (DMA), Dr. Christopher R. Brigham, who calculated
impairment due to loss of shoulder range of motion (ROM) under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (2008).4
In a June 6, 2011 decision, the Branch of Hearings & Review set aside the March 23,
2011 schedule award. OWCP had referred appellant to an impartial medical examiner to resolve
a conflict in medical opinion regarding her entitlement to a schedule award.5 The impartial
medical examiner, Dr. David R. Pashman, found 13 percent RUE impairment. When the DMA
reviewed the record, he was unable to determine how Dr. Pashman arrived at his 13 percent RUE
rating under the A.M.A., Guides (6th ed. 2008). The DMA also disagreed with the impartial
medical examiner’s January 21, 2011 finding of cervical (C4-5) radiculopathy. Because of
perceived deficiencies in the impartial medical examiner’s opinion, the DMA based his eight
percent RUE rating on the July 20, 2010 right shoulder ROM measurements provided by
appellant’s physician, Dr. Diamond.
In setting aside OWCP’s March 23, 2011 schedule award, the hearing representative
explained that the DMA could not resolve a conflict in medical opinion, and given the noted
deficiencies in the impartial medical examiner’s report, OWCP should have sought clarification
from Dr. Pashman. The hearing representative further found that the impartial medical
examiner’s report did not address whether the current RUE impairment was causally related to
appellant’s April 29, 2002 employment injury. Consequently, the case was remanded to OWCP
for further medical development.
On remand, OWCP sought clarification from Dr. Pashman. In a June 10, 2010
supplemental report, the impartial medical examiner attributed appellant’s current right upper
extremity impairment to both preexisting degenerative disease and her April 29, 2002
2

OWCP based its decision to terminate wage-loss compensation and medical benefits on the March 30 and
May 25, 2004 findings of Dr. Richard J. Mandel, a Board-certified orthopedic surgeon and impartial medical
examiner, who concluded that appellant fully recovered from her accepted injury.
3

The award covered a period of 24.96 weeks from July 20, 2010 to January 10, 2011.

4

Table 15-34, Shoulder ROM, A.M.A., Guides 475 (6th ed. 2008).

5

In a report dated July 20, 2010, appellant’s physician, Dr. Nicholas P. Diamond, found 21 percent RUE
impairment under the A.M.A., Guides (6th ed. 2008). Dr. Diamond based his overall rating on a combination of
impairments due to shoulder ROM (eight percent), sensory deficit at C5 nerve root (one percent), and motor/strength
deficits involving the right biceps (five percent) and right triceps (nine percent). The DMA, Dr. Arnold T. Berman,
reviewed Dr. Diamond’s July 20, 2010 impairment rating and disagreed. In a November 7, 2010 report, Dr. Berman
found 11 percent RUE impairment. While he agreed with Dr. Diamond that there was eight percent impairment due
to right shoulder ROM deficits, the DMA only found an additional three percent RUE impairment based on pain and
sensory complaints involving the C5, C6 and C7 nerve roots. OWCP declared a conflict based on the differing
opinions of Dr. Diamond and Dr. Berman (DMA).

2

employment injury. He also explained that in addition to loss of shoulder motion, there was
neuropathic pain and mild nerve root irritation. These later components were considered more
functionally limiting than appellant’s decreased shoulder ROM. Although he explained the
various components of his impairment rating, the impartial medical examiner did not otherwise
identify which aspect(s) of the A.M.A., Guides (6th ed. 2008) supported his 13 percent RUE
impairment.
After reviewing the impartial medical examiner’s supplemental report, Dr. Brigham, the
DMA, reaffirmed his prior finding of eight percent RUE impairment based on shoulder ROM
deficits. The DMA further noted that there was no evidence of sensory or motor deficits that
might otherwise support a neurologic rating of 13 percent RUE impairment. According to
Dr. Brigham, the impartial medical examiner relied upon outdated diagnostic studies in finding
cervical radiculopathy instead of properly relying on current physical examination findings.
OWCP issued a July 5, 2011 decision denying an increased schedule award. The
decision stated that both the impartial medical examiner and DMA “concur” that appellant had
eight percent impairment of the RUE. Because she had already received an award for eight
percent, OWCP found that appellant was not entitled to an additional schedule award.
By decision dated April 10, 2012, the Branch of Hearings & Review set aside the July 5,
2011 decision. The hearing representative ordered OWCP to refer appellant for another
impartial medical evaluation.
In a June 15, 2012 report, Dr. William H. Spellman, a Board-certified orthopedic surgeon
and impartial medical examiner, indicated there was no medical basis for finding that appellant
had greater than eight percent impairment of her RUE. With respect to right shoulder ROM,
Dr. Spellman observed “un-physiologic behavior.” He noted that, although there was no
impingement or capsular tightness evident, appellant actively resisted forward flexion at 75
degrees. Because of her resistance, Dr. Spellman did not attempt to have appellant forward flex
her shoulder in abduction beyond this point. He explained that Dr. Diamond’s July 20, 2010
right shoulder ROM measurements were most favorable to appellant (eight percent RUE), and
because of her current “un-physiologic behavior” it could not be determined whether she would
have exceeded Dr. Diamond’s prior ROM observations. The remainder of the impartial medical
examiner’s physical examination regarding appellant’s right shoulder and upper extremity was
reportedly unremarkable. There were no atrophic changes present and proximal and distal motor
strength was grossly full.
The impartial medical examiner also stated that appellant’s physical examination was
inconsistent with a cervical radiculopathy. Appellant reportedly exhibited a disproportionate
pain response to light, but obvious and deliberate palpation of the right trapezia. When the
impartial medical examiner applied more vigorous palpation of the same area, but in an
unobvious fashion, the previously observed pain behavior was notably absent. The impartial
medical examiner also explained that appellant’s complaint of paresthesias in all fingers of her
right hand was nonanatomic and inconsistent with a 2003 electrodiagnostic study that reportedly
revealed C4-5 nerve root irritation. He also reported that there was no sensory loss detected on
physical examination or any other observed changes to the hands consistent with a neuropathic
process. Additionally, the impartial medical examiner noted inconsistencies with respect to

3

ROM of the neck. When she was asked to demonstrate ROM of her neck, appellant reported
pain at five degrees of right or left lateral rotation. However, the impartial medical examiner
observed 50 degrees of right or left lateral rotation as appropriate to maintain eye contact during
the interview and during other parts of the examination. Additionally, the impartial medical
examiner commented that root tension signs were absent and deep tendon reflexes were
symmetrically normal. Based on his evaluation, the impartial medical examiner concluded there
was no basis for a finding of cervical radiculopathy or other neuropathic process affecting
appellant’s RUE.
Having accepted Dr. Diamond’s July 2010 eight percent shoulder ROM impairment
rating, the impartial medical examiner found no medical basis for concluding that appellant had a
greater permanent impairment of her RUE.
Dr. Morley Slutsky, a medical adviser, reviewed the impartial medical examiner’s
June 15, 2012 report and found one percent RUE impairment. The DMA’s July 24, 2012
impairment rating was based on a diagnosis of shoulder sprain under Table 15-5, Shoulder
Regional Grid, A.M.A., Guides 401 (6th ed. 2008).
In a July 30, 2012 decision, OWCP found that appellant was not entitled to an additional
schedule award based on the latest reports from the impartial medical examiner and DMA.
Appellant requested a hearing which was held on November 28, 2012.
OWCP received the results of a June 11, 2012 cervical magnetic resonance imaging
(MRI) scan which revealed, inter alia, no stenosis and a normal cervical cord throughout.
In a November 23, 2012 supplemental report, Dr. Diamond noted that he had reviewed
both the impartial medical examiner’s report and the DMA’s findings. He criticized the
impartial medical examiner’s findings with respect to upper extremity motor strength and
sensation to light touch, noting that it was unclear what type of testing had been administered.
Dr. Diamond stated that, based on his July 20, 2010 evaluation, appellant had a total combined
RUE impairment of 20 percent.
By decision dated February 19, 2013, the hearing representative affirmed OWCP’s
July 30, 2012 decision denying an additional schedule award.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.6 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
6

For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).

4

evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).8
FECA provides that, if there is disagreement between an OWCP-designated physician
and the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.9 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”10 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.11
ANALYSIS
OWCP properly declared a conflict in medical opinion between appellant’s physician,
Dr. Diamond, who found 21 percent RUE impairment, and the DMA, Dr. Berman, who only
found 11 percent impairment. The two physicians concurred regarding appellant’s eight percent
impairment due to shoulder ROM deficits, but disagreed about the extent of impairment due to
cervical-related upper extremity sensory and/or motor deficits. After referring appellant to an
impartial medical examiner, OWCP granted a schedule award for eight percent RUE impairment.
However, the March 23, 2011 schedule award was not based on the January 21, 2011 findings of
Dr. Pashman, the impartial medical examiner. OWCP relied instead on the March 14, 2011
impairment rating of then DMA Dr. Brigham, which was primarily based on Dr. Diamond’s
July 20, 2010 right shoulder ROM measurements. The Branch of Hearings & Review
appropriately set aside the March 23, 2011 schedule award because OWCP supplanted the
impartial medical examiner’s opinion.12

7

20 C.F.R. § 10.404 (2012).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
9

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321 (2012); Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA,
acting on behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
10

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

11

Gary R. Sieber, 46 ECAB 215, 225 (1994).

12

While the DMA may review the opinion of a referee specialist in a schedule award case, the resolution of the
conflict is the specialist’s responsibility. The DMA cannot resolve a conflict in medical opinion. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Developing & Evaluating Medical Evidence, Chapter 2.810.8k
(September 2010).

5

After two remands, OWCP ultimately referred appellant to Dr. Spellman for an impartial
medical evaluation.13
Dr. Spellman’s June 15, 2012 physical examination revealed “un-physiologic behavior”
during right shoulder active ROM testing. He observed appellant’s resistance in forward flexion
at 75 degrees absent evidence of impingement or capsular tightness. As such, the impartial
medical examiner curtailed his right shoulder ROM examination. Dr. Spellman explained that,
because of appellant’s un-physiologic behavior, he was unable to determine if her right shoulder
ROM would have exceeded what Dr. Diamond observed in July 2010. The remainder of
appellant’s right shoulder physical examination was unremarkable. Dr. Spellman commented
that there was no evidence of atrophy and no loss of motor strength.
Dr. Spellman also addressed whether there were any neck/cervical conditions affecting
appellant’s RUE. He noted that her physical examination was inconsistent with a cervical
radiculopathy. The impartial medical examiner also questioned appellant’s pain response on
light palpation of the right shoulder area, as well as her complaints of paresthesias in all fingers
of the right hand. This latter complaint he characterized as nonanatomic. Lastly, the impartial
medical examiner observed questionable limitations regarding neck ROM. When asked to
demonstrate her neck ROM, appellant reported pain at five degrees of right/left lateral rotation.
However, during other aspects of the examination, the impartial medical examiner observed 50
degrees of right/left lateral rotation. Based on his examination and review of the record, the
impartial medical examiner indicated that there was no basis for finding a cervical radiculopathy
or other neuropathic process affecting appellant’s RUE.
Dr. Spellman concluded that there was no medical basis for finding that appellant
currently had a greater impairment than the eight percent RUE impairment derived from
Dr. Diamond’s July 2010 assessment of her shoulder ROM. When a case is referred to an
impartial medical examiner to resolve a conflict, the resulting medical opinion, if sufficiently
well rationalized and based upon a proper factual background, must be given special weight.14
The Board finds that OWCP properly deferred to Dr. Spellman’s June 15, 2012 findings. The
impartial medical examiner provided a well-reasoned report based on a proper factual and
medical history. He also accurately summarized the relevant medical evidence. Additionally,
13

On appeal, counsel “suggested” that Dr. Spellman was not properly selected as impartial medical examiner
because of the absence of screen shot images. To the contrary, the current record includes a screen shot and a
ME023 - Appointment Schedule Notification which confirm Dr. Spellman’s selection as impartial medical examiner
pursuant to OWCP’s Medical Management (MM) application. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5 (May 2013); R.C., Docket No. 12-468 (issued October 5, 2012).
Additionally, the record includes screen shots of several physicians who were bypassed by OWCP before selecting
Dr. Spellman. These screen shots identify the physician by name and the reason he/she was bypassed. For example,
Dr. Pashman was one of eight physicians bypassed. The reason OWCP bypassed him was because “Claimant saw
this Dr.” Seven other physicians were bypassed for various reasons, including incomplete information regarding
current telephone number/location, the physician(s) did not do impairment ratings, and the physician(s) had not
returned OWCP’s calls.
14

Gary R. Sieber, supra note 11.

6

Dr. Spellman provided a thorough examination. His June 15, 2012 report included detailed
findings and medical rationale supporting his opinion. As the impartial medical examiner,
Dr. Spellman’s opinion was entitled to determinative weight.15 Accordingly, the Board finds that
OWCP properly relied on Dr. Spellman’s June 15, 2012 findings in determining that appellant
did not have right upper extremity impairment in excess of the eight percent previously awarded.
In his latest report dated November 23, 2012, Dr. Diamond offered no additional insight
or support for his RUE impairment rating. In fact, this latest report found 20 percent combined
RUE impairment, whereas Dr. Diamond previously found 21 percent impairment. Subsequent
reports from a physician who was on one side of a medical conflict that has since been resolved
would generally be insufficient to overcome the weight accorded the impartial medical
examiner’s report and/or insufficient to create a new medical conflict.16 Dr. Diamond’s
November 23, 2012 follow-up report is insufficient to overcome the weight properly accorded
Dr. Spellman’s June 15, 2012 opinion and is similarly insufficient to create a new conflict in
medical opinion.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
Appellant failed to establish that she has greater than eight percent impairment of the
RUE.

15

Id.

16

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

7

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8