United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 20-0841
Issued: February 12, 2021

Case Submitted on the Record

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

JURISDICTION
On March 6, 2020 appellant, through counsel, filed a timely appeal from a February 4,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a Board decision dated November 5, 2019, which became final after 30

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.

days of issuance and is not subject to further review.2 As there is no merit decision by OWCP
issued within 180 days of the filing of this appeal, pursuant to the Federal Employees’
Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On June 8, 2017 appellant, then a 46-year-old criminal investigator and firearms instructor,
filed a traumatic injury claim (Form CA-1) alleging that hazardous noise during employmentrelated firearms training on May 26, 2017 caused constant ringing in his left ear that had not abated
after seven days.
Appellant submitted medical evidence. In a June 29, 2017 report, Dr. Mario G. Alinea, an
attending Board-certified family practitioner, noted appellant’s complaints of left-sided hearing
loss and tinnitus after exposure to firearms noise on a shooting range. He obtained an audiogram
on June 29, 2017. At the frequency levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz) in the right
ear, appellant exhibited decibel (dB) losses of 10, 15, 10, and 20, respectively. Testing at the same
frequency levels for the left ear revealed dB losses of 20, 30, 20, and 40, respectively.
Tympanometry was within normal limits bilaterally. Dr. Alinea diagnosed left-sided sensorineural
hearing loss with tinnitus. He explained that, based on appellant’s history and clinical findings,
he was “unclear if this hearing loss [was] attributable to firearms noise exposure on a more
probable than not basis.” Dr. Alinea remarked that, as most occupational noise exposures were
symmetric, hearing loss was typically bilateral.
In a June 29, 2017 form report, Dr. Alinea diagnosed tinnitus and sensorineural hearing
loss. He checked a box marked “Yes,” indicating his support for a causal relationship between the
diagnosed conditions and exposure to firearms noise at work. Dr. Alinea also completed a duty
status report (Form CA-17) on June 29, 2017 in which he checked a box marked “Yes” in support
of causal relationship.
By decision dated July 27, 2017, OWCP accepted that appellant’s participation in the
May 26, 2017 firearms practice occurred as alleged, but denied the claim, finding that the medical
2

20 C.F.R. § 501.6(d); see S.M., Docket No. 19-1961 (issued January 28, 2021); P.S., Docket No. 18-0718 (issued
October 26, 2018); T.B., Docket No. 15-0001 (issued July 1, 2015); C.M., Docket No. 15-0471 (issued April 27,
2015).
3

5 U.S.C. § 8101 et seq.

4

Docket No. 19-0952 (issued November 5, 2019); Docket No. 17-1755 (issued March 9, 2018).

2

evidence of record did not provide medical rationale in support of causal relationship between the
diagnosed sensorineural hearing loss condition and the accepted May 26, 2017 employment
incident. Appellant then appealed to the Board.5
By decision issued March 9, 2018,6 the Board affirmed OWCP’s July 27, 2017 decision,
finding that appellant did not meet his burden of proof to establish that his left-sided hearing loss
and tinnitus were causally related to the accepted May 26, 2017 employment incident.
On August 7, 2018 appellant, through counsel, requested a telephonic hearing of OWCP’s
July 27, 2017 decision before a representative of OWCP’s Branch of Hearings and Review.
By decision dated August 14, 2018, an OWCP hearing representative denied appellant’s
request for a telephonic hearing. She indicated to counsel that the final decision on the issue was
the Board’s March 9, 2018 decision, and that OWCP’s Branch of Hearing and Review did not
have jurisdiction to review final decisions of the Board. As such, appellant was not entitled to a
hearing as a matter of right. OWCP’s hearing representative exercised her discretion and further
denied the hearing request for the reason that the issue in the case could equally well be addressed
by requesting reconsideration and submitting new evidence establishing an employment-related
injury.
On March 6, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a February 22, 2019 report, Dr. John J. Simmer, a Board-certified otolaryngologist,
noted the accepted May 26, 2017 employment incident and subsequent treatment. He related
appellant’s complaints of constant left-sided tinnitus interfering with sleep. Dr. Simmer reviewed
an audiogram obtained by Stefanie M. Allan, an audiologist, which demonstrated a mild or
borderline hearing loss in the left ear at frequencies greater than 2,000 Hz, and a borderline hearing
loss on the right at 3,000 Hz and from 6,000 to 8,000 Hz. He diagnosed sensorineural hearing loss
of the left ear with interval improvement since 2017, restricted hearing in the right ear, and tinnitus
of the left ear. Dr. Simmer opined that loud noise exposure was a recognized cause of
sensorineural hearing loss and tinnitus, which could occur as an acute event “with exposure to
extreme loud noise or can be gradual with frequent, regular exposure to loud noise.” He further
noted that the temporal relationship of onset of appellant’s symptoms to presence on the firing
range would suggest loud noise exposure as the source of appellant’s condition.
In a February 25, 2019 report, Dr. Nancy A. Becker, an osteopathic physician Boardcertified in otolaryngology, noted appellant’s account of a 2004 employment incident in which he
was exposed to firearms noise and lost hearing in his left ear for one month. Appellant had a
second episode in May 2017 when the employing establishment changed to a short barrel assault
5
During the pendency of the prior appeal, appellant submitted a July 17, 2017 report by Dr. Sepehr Oliaei, a Boardcertified otolaryngologist. Dr. Oliaei noted a history of gradual onset of bilateral hearing loss, and that appellant had
constant exposure to loud noise in his work as a firearms instructor. He obtained an audiogram demonstrating normal
hearing in the right ear, and a mild sloping-to-moderate sensorineural hearing loss from 1,000 through 8,000 Hz in the
left ear. Dr. Oliaei diagnosed tinnitus, noise-induced hearing loss, and sensorineural hearing loss in the left ear.
6

Docket No. 17-1755 (issued March 9, 2018).

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weapon with a louder report than previous firearms used. He experienced bilateral tinnitus which
abated on the right after one week. Appellant posited that noise reverberating from trees on the
left side of the shooting range caused more severe tinnitus on the left. A February 25, 2019
audiogram demonstrated a 5 to 10 dB conductive hearing loss on the left and a sensorineural
hearing loss on the left. Tympanometry was within normal limits bilaterally. Dr. Becker
diagnosed left conductive hearing loss, left sensorineural hearing loss, left tinnitus, chronic rhinitis,
and a eustachian tube dysfunction. She opined that the eustachian tube dysfunction “might be
accounting for part of the conductive hearing loss.”
By decision dated March 11, 2019, OWCP denied modification of its July 27, 2017
decision. Appellant, through counsel, then appealed to the Board.
During the pendency of the prior appeal, appellant submitted additional medical evidence.
In a June 12, 2019 report, Dr. Becker opined that there was a “direct relationship between him
having excellent hearing on previous physicals and then having a sensorineural hearing loss in the
left ear after his accident in May 2017.” Appellant also had tinnitus. Dr. Becker noted that causal
relationship was further supported by appellant’s medical history and the February 25, 2019
audiogram. She noted that she agreed with Dr. Simmer that loud noise exposure was recognized
as a cause of sensorineural hearing loss and tinnitus. “The left sensorineural hearing loss on” the
February 25, 2019 audiogram “with normal audiograms previous to his first episode of noise
exposure supports this.” Dr. Becker opined that appellant would benefit from a hearing aid in his
left ear.
Appellant also submitted an audiogram dated July 15, 2019, obtained by a registered nurse
whose signature is illegible. At the frequency levels of 500, 1,000, 2,000, and 3,000 Hz in the
right ear, appellant exhibited dB losses of 15, 15, 15, and 25, respectively. Testing at the same
frequency levels for the left ear revealed dB losses of 25, 35, 30, and 60, respectively. The nurse
totaled the decibel losses in the left ear to equal 150 and divided the result by four to equal 37.5.
Subtracting the fence of 25 decibels left a balance of 12.5, multiplied by a factor of 1.5 to equal an
18.75 percent monaural hearing loss in the left ear.
By decision issued November 5, 2019, the Board affirmed OWCP’s March 11, 2019
decision, finding that the medical evidence of record did not contain sufficient rationale supporting
causal relationship between the accepted May 26, 2017employment incident and the claimed leftsided hearing loss and tinnitus to meet appellant’s burden of proof.
On November 7, 2019 appellant, through counsel, requested reconsideration. He
contended that Dr. Becker’s June 12, 2019 report was sufficient to vacate the prior decision.
Counsel also provided a copy of the July 15, 2019 audiogram.

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By decision dated February 4, 2020, OWCP denied appellant’s request for
reconsideration.7
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.8
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.9
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.11 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

OWCP actually referred to the Board’s November 5, 2019 decision. However, OWCP has no jurisdiction to
review a Board decision. The decisions and orders of the Board are final as to the subject matter appealed and such
decisions and orders are not subject to review, except by the Board. See 20 C.F.R. § 501.6(d). Appellant had 30 days
from the date of the Board’s June 14, 2018 decision to file a petition for reconsideration with this Board of its decision.
Id. at § 501.7. See also C.M., Docket No. 19-1211 (issued August 5, 2020); B.B., Docket No. 14-0464 (issued
June 4, 2014).
7

8

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
9

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
10
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
11

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

12
Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

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The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. Counsel asserted that appellant had submitted
uncontroverted medical evidence sufficient to warrant further development. He further asserted
that the newly submitted June 12, 2019 report from Dr. Becker and July 15, 2019 audiogram were
sufficient to vacate OWCP’s prior decision. Causal relationship, however, is a medical issue that
must be addressed by relevant medical evidence.13 Counsel’s lay opinion is not relevant to the
underlying issue in this case, which is whether the medical evidence establishes that appellant
sustained an employment-related left-sided hearing loss and tinnitus. Consequently, appellant is
not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).14
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted a June 12, 2019 report from Dr. Becker,
who diagnosed left-sided hearing loss and tinnitus. She opined that these conditions were related
to work factors based on the date of onset and expressed agreement with Dr. Simmer’s opinion
that exposure to loud noise could cause sensorineural hearing loss and tinnitus. While this report
is new, it is substantially similar to Dr. Becker’s February 25, 2019 report previously of record,
which also described the onset of left-sided hearing loss and tinnitus following exposure to loud
noise while at work. Providing additional evidence that either duplicates or is substantially similar
to evidence already of record does not constitute a basis for reopening a case.15 Appellant also
submitted a July 15, 2019 audiogram in support of her request for reconsideration. This report,
however, is irrelevant as it does not address the underlying issue of causal relationship. The Board
has held that the submission of evidence that does not address the underlying issue involved does
not constitute a basis for reopening a case.16 As appellant did not provide relevant and pertinent
new evidence, he is not entitled to a merit review based on the third requirement under 20 C.F.R.
§ 10.606(b)(3).17
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
On appeal counsel contends that OWCP failed to give due deference to the findings of
appellant’s physicians and failed to adjudicate the claim in accordance with the proper standard of
causation. As explained above, the Board lacks jurisdiction over the merits of this case and
appellant’s November 7, 2019 is insufficient to warrant further merit review.

13

A.G., Docket No. 20-0290 (issued June 24, 2020).

14

A.G., id.; C.B., Docket No. 18-1108 (issued January 22, 2019).

15

See G.J., Docket No. 20-0071 (issued July 1, 2020); V.Q., Docket No. 19-1309 (issued January 3, 2020).

16

T.T., Docket No. 19-1624 (issued October 28, 2020).

17

See T.W., Docket No. 18-0821 (issued January 13, 2020).

18

J.B., supra note 12; D.G., Docket No. 19-1348 (issued December 2, 2019).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, HORSHAM POST
OFFICE, Horsham, PA, Employer
__________________________________________

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

Docket No. 09-328
Issued: August 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from an August 5, 2008 decision
of the Office of Workers’ Compensation Programs affirming the termination of her
compensation benefits and rescinding a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective January 15, 2008 on the grounds that her work-related injury had
ceased without residuals; and (2) whether the Office met its burden of proof to rescind a
March 24, 2005 schedule award for a 17 percent impairment of the left upper extremity.
FACTUAL HISTORY
On October 24, 2001 appellant, then a 39-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that she sustained a bilateral wrist condition due to repetitive
lifting of parcels and trays of coupon mailers at work during the week of September 3, 2001.

She noted a history of hyperthyroidism due to Graves’ disease diagnosed in 1994, for which she
took a prescription thyroid hormone replacement.
In an October 25, 2001 report, Dr. Steven Balint, an attending Board-certified internist,
related appellant’s account of repetitive heavy lifting at work handling trays of bulk mail
coupons during the week of September 3, 2001. On examination appellant had left hand
paresthesias, diminished grip strength, a positive Tinel’s sign on the left and lateral epicondylitis.
Dr. Balint referred appellant to Dr. Moody Kwok, a Board-certified orthopedic surgeon.
In a November 19, 2001 report, Dr. Kwok noted that appellant was a left-hand dominant
postal clerk, who performed repetitive heavy lifting the first week of September 2001.
December 5, 2001 electrodiagnostic studies showed bilateral carpal tunnel syndrome. In a
January 9, 2002 report, Dr. Kwok noted that left wrist x-rays and a January 2, 2002 magnetic
resonance imaging scan showed scapholunate disassociation with carpal instability, which
“could be attributable to some heavy lifting or twisting of her wrist” at work. He recommended
surgical repair.
On January 29, 2002 the Office accepted that appellant sustained bilateral carpal tunnel
syndrome. In February 2002, an Office medical adviser opined that she sustained a left wrist
sprain with scapholunate ligament tear. He approved surgical reconstruction. The Office then
accepted a left wrist strain with capsulorrhaphy and reconstruction.
Appellant stopped work on February 28, 2002. Later that day, Dr. Kwok performed an
open scapholunate ligament construction and repair with carpal tunnel release and percutaneous
pinning. He characterized the left wrist instability and carpal tunnel syndrome as work related.
Dr. Kwok removed the pins on May 14, 2002. A computerized tomography scan of the left wrist
showed separation of the scapholunate interval and migration of fixation hardware into the
lunocapital joint. Dr. Kwok performed a scapholunate ligament revision repair and Blatt
procedure on July 30, 2002.
He removed hardware and performed manipulation on
1
October 22, 2002. Appellant returned to full-time limited-duty work on December 24, 2003.
On September 29, 2004 appellant claimed a schedule award for permanent impairment of
the left upper extremity. In support of her claim, she submitted a June 24, 2004 report from
Dr. Nicholas Diamond, an attending osteopathic physician, who provided a history of injury and
treatment and found that appellant had reached maximum medical improvement. On
examination, Dr. Diamond noted dorsiflexion limited to 25 degrees, flexion to 10 degrees, radial
deviation at 5 degrees and ulnar deviation at 10 degrees. He also noted a grip strength deficit on
the left and pain of 6 to 7 out of 10 on the visual analog scale. Dr. Diamond diagnosed left
scapholunate dissociation, carpal tunnel syndrome and unresolved tenosynovitis of the left wrist.
Referring to the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter, A.M.A., Guides), he assigned a six percent impairment for
limited left wrist dorsiflexion and an eight percent impairment for limited palmar flexion
according to Figure 16-28, page 4672 and a four percent deficit for limited ulnar deviation
1

Dr. Kwok submitted progress notes through June 2004 finding continued left wrist pain and stiffness.

2

Figure 16-28, page 467 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack OF Flexion and Extension of Wrist Joint.”

2

according to Figure 16-31, page 469.3 Dr. Diamond assigned a 10 percent impairment due to
grip strength deficit. He added the range of motion deficits to equal 18 percent, then combined
this percentage with the 10 percent grip strength impairment to equal 26 percent. Dr. Diamond
then added a three percent impairment due to pain according to Figure 18-1, page 574.4 He then
added the 26 and 3 percent impairments to total a 29 percent impairment to the left upper
extremity.5
On October 24, 2004 an Office medical adviser reviewed Dr. Diamond’s report and
opined that appellant sustained a 17 percent impairment of the left upper extremity: 8 percent for
loss of flexion and 7 percent for loss of extension according to Figure 16-28 and 2 percent for
pain according to Table 18-1.
By decision dated March 24, 2005, the Office granted appellant a schedule award for a 17
percent impairment of the left upper extremity. The period of the award ran from June 24, 2004
to January 22, 2005.
In a March 29, 2005 letter, appellant requested an oral hearing, held February 24, 2006.
At the hearing, he asserted a conflict of medical opinion between Dr. Diamond and the Office
medical adviser.
By decision dated and finalized May 8, 2006, an Office hearing representative set aside
the March 24, 2005 schedule award, finding a conflict of medical opinion between Dr. Diamond,
for appellant and the Office medical adviser, for the government, regarding the appropriate
percentage of permanent impairment. The hearing representative remanded the case to the
Office for appointment of an impartial medical examiner.
On August 3, 2006 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. William Simon, a Board-certified orthopedic surgeon, for an impartial
medical examination and calculation of a schedule award. In a September 11, 2006 report,
Dr. Simon reviewed the medical record and statement of accepted facts. He noted that appellant
had hypothyroidism. On examination of the left wrist Dr. Simon found dorsiflexion and palmar
flexion limited to 40 degrees and a loss of 20 degrees radial deviation. He stated that while
appellant’s left wrist pain developed after repetitive heavy lifting at work, this was not an “acute
injury that would represent an acute tear of the scapholunate ligament.” Dr. Simon therefore
opined that it was likely that the scapholunate ligament dissociation was a developmental finding
or old finding unconnected to lifting at work. Also, appellant had widening of the scapholunate
interval in both wrists but only had symptoms on the left. Dr. Simon found a 34 percent
permanent impairment to the left upper extremity due to decreased range of motion according to
the A.M.A., Guides: 6 percent for limited dorsiflexion and 8 percent for limited palmar flexion
3

Figure 16-31, page 469 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Abnormal Radial and Ulnar Deviations of Wrist Joint.”
4

Figure 18-1, page 574 of the fifth edition of the A.M.A., Guides is entitled, “Algorithm for Rating Pain-Related
Impairment in Conditions Associated With Conventionally Ratable Impairment.”
5

In a March 8, 2005 report, Dr. Balint noted that radial deviation in the left wrist was limited to 10 degrees, ulnar
deviation to 20 degrees and flexion and extension to 30 degrees. He recommended continued work restrictions.

3

according to Figure 16-28, 4 percent for limited ulnar deviation according to Figure 16-31,
10 percent for grip strength deficit according to Tables 16-326 and 16-34,7 page 509. He
combined these impairments to equal 26 percent. Dr. Simon then added a 3 percent impairment
for pain according to Table 18-1, page 574, for a total of 29 percent. However, he stated that this
impairment was related only to the nonoccupational scapholunate dissociation.
In an October 25, 2006 report, an Office medical adviser found that Dr. Simon erred as
his clinical findings equaled only a 12 percent impairment of the left upper extremity. He
therefore found no additional permanent impairment.
By decision dated February 16, 2007, the Office denied an additional schedule award,
based on Dr. Simon’s opinion. In a February 22, 2007 letter, appellant requested an oral hearing,
By decision dated May 3 2007, an Office hearing representative vacated the February 16, 2007
decision due to a conflict of medical opinion between Dr. Diamond, for appellant, and
Dr. Simon, for the government, regarding the percentage of permanent impairment and cause of
the scapholunate ligament dissociation. The hearing representative directed the appointment of
an impartial medical specialist to resolve the conflict.
In a May 4, 2007 reports, Dr. Kwok noted that appellant developed post-traumatic
arthritis of her left wrist, status post left scapholunate reconstruction. He found extension limited
to 45 to 50 degrees and volar flexion limited to 45 degrees. Dr. Kwok permanently limited
lifting to 17 pounds or less.
On July 19, 2007 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. Andrew Collier, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. Dr. Collier submitted an August 22, 2007 report reviewing the medical
record and statement of accepted facts. He noted that, in 1994, appellant was diagnosed with
hyperthyroidism due to Grave’s disease, had ablation of the thyroid and had taken Synthroid
since. On examination, Dr. Collier found flexion, extension and radial deviation of the left wrist
limited to 30 degrees and ulnar deviation limited to 10 degrees. He noted slightly diminished
grip strength on the left. Dr. Collier noted that the most recent x-rays, obtained on February 13,
2004, showed a persistent increase in the scapholunate interval with no carpal instability. He
concurred with Dr. Simon that appellant had no occupational wrist condition because
hypothyroidism caused the carpal tunnel syndrome and the scapholunate dissociation was
developmental. Dr. Collier stated that she had no residual impairment attributable to the carpal
tunnel release. He noted work restrictions against lifting more than 17 pounds and repetitive
upper extremity motion.
Dr. Collier explained that these restrictions were due to
nonoccupational scapholunate dissociation and not the accepted carpal tunnel syndrome.

6

Table 16-32, page 509 of the fifth edition of the A.M.A., Guides is entitled “Average Strength of Grip by Age in
100 Subjects.”
7

Table 16-34, page 509 of the fifth edition of the A.M.A., Guides is entitled “Upper Extremity Joint Impairment
Due to Loss of Grip or Pinch Strength.”

4

By notice dated November 16, 2007, the Office advised appellant that it proposed to
terminate her compensation benefits on the grounds that the accepted carpal tunnel syndrome
had ceased without residuals, based on Dr. Collier’s report as the weight of the medical evidence.
In a November 29, 2007 letter, appellant asserted that Dr. Collier’s opinion was flawed as
he did not refer to the A.M.A., Guides and incorrectly stated that carpal tunnel release surgery
did not constitute a permanent impairment.
By decision dated January 15, 2008, the Office terminated appellant’s wage-loss and
medical compensation benefits effective that day, based on Dr. Collier’s opinion as the weight of
the medical evidence. It characterized Dr. Collier’s report as well rationalized and based on a
complete medical and factual record.
In a January 21, 2008 letter, appellant requested an oral hearing, held on April 22, 2008.
At the hearing, she, through her attorney, asserted that the left median nerve release constituted a
permanent impairment according to the A.M.A., Guides. Therefore, Dr. Collier erred by finding
that appellant had no ratable impairment. Also, he did not provide sufficient rationale explaining
why repeated heavy lifting at work would not aggravate a congenital disorder of the
scapholunate ligament. Appellant’s attorney contended that Dr. Collier’s report was insufficient
to represent the weight of the medical evidence.
After the hearing, appellant submitted a January 29, 2008 report from Dr. Kwok, finding
limited left wrist flexion and extension. He permanently limited lifting to 17 pounds.
By decision dated and finalized August 5, 2008, an Office hearing representative
affirmed the Office’s February 16, 2007 and January 15, 2008 decisions, finding that the Office
properly terminated appellant’s compensation benefits. The hearing representative found that
Dr. Collier’s opinion was entitled to the weight of the medical evidence as it was well
rationalized and based on a complete factual and medical history. The hearing representative
remanded the case for rescission of the March 24, 2005 schedule award as the weight of the
medical evidence established that it was paid solely for appellant’s preexisting, nonoccupational
scapholunate ligament condition.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.8 Having determined that an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.9

8

Bernadine P. Taylor, 54 ECAB 342 (2003).

9

Id.

5

The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.10 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.11
Section 8123 of the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician, who shall make an
examination.12 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.13
Where the Office secures an opinion from an impartial medical examiner for the purpose
of resolving a conflict in the medical evidence and the opinion from such examiner requires
clarification or elaboration, the Office has the responsibility to secure a supplemental report from
the examiner for the purpose of correcting the defect in the original opinion.14
ANALYSIS -- ISSUE 1
The Office accepted that, on or before September 3, 2001, appellant sustained bilateral
carpal tunnel syndrome with left median nerve release and a left scapholunate ligament tear with
reconstruction. It terminated her compensation benefits effective January 15, 2008 on the
grounds that she no longer had residuals of the accepted carpal tunnel syndrome. By August 5,
2008 decision, the Office affirmed the termination of appellant’s compensation and rescinded its
acceptance of the let scapholunate ligament tear, based on the opinion of Dr. Collier, a Boardcertified orthopedic surgeon and impartial medical examiner. The Board finds, however, that
Dr. Collier’s opinion is deficient in several respects.
In his August 22, 2007 report, Dr. Collier opined that appellant had a permanent
impairment of the left upper extremity due to nonoccupational scapholunate dissociation. He
stated that the accepted carpal tunnel syndrome and median nerve release did not constitute a
permanent impairment. However, Dr. Collier did not refer to the A.M.A., Guides to support this
opinion. The Board notes that the A.M.A., Guides at page 495 provide that after an optimal
period of time following median nerve decompression, residual symptoms could constitute a
permanent impairment of up to five percent. Dr. Collier also found that appellant had a
congenitally enlarged scapholunate interval bilaterally. However, he did not provide medical

10

Roger G. Payne, 55 ECAB 535 (2004).

11

Pamela K. Guesford, 53 ECAB 726 (2002).

12

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

13

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

14

Harry T. Mosier, 49 ECAB 688 (1998).

6

rationale explaining how and why repetitive heavy lifting at work would not have affected this
preexisting condition.
Also, Dr. Collier concurred with the opinion of Dr. Simon, a Board-certified orthopedic
surgeon and second opinion examiner, that neither of the accepted conditions were work related.
However, Dr. Simon based his opinion on an incorrect medical history. In his September 11,
2006 report, he attributed appellant’s carpal tunnel syndrome to hypothyroidism. But appellant
did not have hypothyroidism. She had hyperthyroidism, the opposite condition, due to Graves’
disease. Appellant underwent ablation of the thyroid in 1994 and was prescribed a synthetic
thyroid hormone. There is no evidence of record, such as laboratory results of serologic tests,
that the Synthroid did not adequately compensate for the absence of natural thyroid hormone or
that appellant was diagnosed by an endocrinologist or other germane specialist as having
hypothyroidism. Therefore, Dr. Simon’s opinion was based on an incorrect, inaccurate medical
history. Dr. Collier’s adoption of Dr. Simon’s opinion was therefore erroneous.
The Board finds that Dr. Collier’s opinion was predicated on inaccurate medical
information and insufficiently rationalized. It was insufficient to represent the weight of the
medical evidence and resolve the conflict of medical opinion between Dr. Diamond, for
appellant and Dr. Simon, for the government. Therefore, at the time of the termination, there
was an outstanding conflict of medical opinion. The termination was thus improper. The Office
did not meet its burden of proof in terminating compensation.15
ANALYSIS -- ISSUE 2
The Office did not meet its burden of proof in terminating appellant’s compensation
benefits or in rescinding acceptance of scapholunate dissociation and reconstructive surgery.
Therefore, the second issue regarding the rescission of the schedule award on the grounds that
appellant had no occupational left wrist condition is moot.
CONCLUSION
The Board finds that the Office did not meet its burden of proof in terminating
appellant’s wage-loss and medical benefits. The second issue regarding the rescission of the
schedule award is therefore moot. The case is returned to the Office for payment of all
compensation due and owing from January 15, 2008 onward.

15

V.C., 59 ECAB ___ (Docket No. 07-642, issued October 18, 2007); Raymond W. Behrens, 50 ECAB
221 (1999).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2008 is reversed.
Issued: August 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION, JFK
INTERNATIONAL AIRPORT, Jamaica, NY,
Employer
__________________________________________

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

Docket No. 18-0501
Issued: February 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 10, 2018 appellant, through counsel, filed a timely appeal from a December 19,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the December 19, 2017 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
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective December 20, 2017, for refusing an
offer of suitable work pursuant to 5 U.S.C. § 8106(c).
FACTUAL HISTORY
On May 4, 2015 appellant, then a 50-year-old administrative aid, filed a traumatic injury
claim (Form CA-1) alleging that on that day he injured his right shoulder when he fell on a wet
floor while in the performance of duty. He stopped work that same date.
On June 25, 2015 OWCP accepted appellant’s claim for right shoulder sprain and later
expanded acceptance of the claim to include the additional condition of partial tear of the right
rotator cuff. A right shoulder arthroscopy was authorized on October 22, 2015.
Appellant continued to submit frequent progress notes from his treating physician,
Dr. Tony N. Quach, a Board-certified orthopedic surgeon, dated August 14, 2015 to June 9, 2016.
Dr. Quach reported that appellant was disabled due to his employment injury. He also noted
appellant’s history of polio and reported that he wore braces on his legs and required crutches to
ambulate.
On July 15, 2016 Dr. Quach diagnosed partial thickness rotator cuff tear and full thickness
rotator cuff tear. He advised that appellant was disabled from work. In an undated attending
physician’s report (Form CA-20), Dr. Quach advised that appellant underwent surgery and was
totally disabled from work commencing October 22, 2015. In a duty status report (Form CA-17)
dated July 29, 2016, he diagnosed right shoulder rotator cuff tear status post rotator cuff repair and
noted that appellant could not resume work.
Appellant was referred by OWCP for a second opinion examination along with the
record and a statement of accepted facts (SOAF) to determine his disability status. In a July 25,
2016 report, Dr. Arnold Goldman, a Board-certified orthopedic surgeon serving as a second
opinion physician, noted his review of the SOAF, medical records, and that he conducted a
physical examination. He opined that appellant had disabling residuals due to his accepted
employment injury. Dr. Goldman noted that appellant had a complicated medical history of polio
since the age of four and a half and he wore braces on both lower extremities. Findings on
examination revealed well-healed arthroscopic portals of the right shoulder, forearm atrophy,
range of motion (ROM) of the right shoulder was limited, and strength of 4/5 on the right and 5/5
on the left. Dr. Goldman advised that the conditions had not resolved due to atrophy and decreased
ROM caused by the fall and injury. He noted no aggravated preexisting conditions. Dr. Goldman
advised that appellant had not reached maximum medical improvement (MMI). He indicated that
appellant was not capable of returning to his date-of-injury job, but could work four hours a day
through September 2016 and then increase to an eight-hour day with restrictions secondary to the
surgery. Dr. Goldman noted that appellant’s prognosis was guarded for return to his preinjury
level of work, but the prognosis was good for a return to work in a light-duty capacity for eight
hours per day. In a work capacity evaluation (Form OWCP-5c), he noted that appellant was not
capable of returning to his usual job due to pain and atrophy of the right arm, but could return to
work four hours per day with a gradual increase to eight hours per day with restrictions necessary
due to his shoulder surgery.
2

Appellant continued to submit reports from Dr. Quach dated September 16, 2016 to
January 30, 2017 in which he noted appellant’s continued complaints of right shoulder pain. On
December 27, 2016 Dr. Quach indicated that appellant reported using his wheelchair the majority
of the time as he lacked endurance to use crutches for long periods of time. He diagnosed right
shoulder rotator cuff tendon tear after a mechanical fall at work in May 2015. Dr. Quach noted
that the tear required operative intervention and appellant subsequently developed left shoulder
symptoms and a partial thickness rotator cuff tear secondary to overuse of the left shoulder after
his right shoulder surgery. He noted the history of polio. Dr. Quach opined that appellant was
unable to return to work.
On March 30, 2017 OWCP determined that there was a conflict of opinion between
Dr. Quach, appellant’s treating physician who opined that appellant was totally disabled from
work, and Dr. Goldman, the second opinion physician, who opined that appellant was capable of
working in a part-time, limited-duty capacity with a gradual increase to eight hours.
On April 3, 2017 Dr. Quach noted appellant’s continued complaints of significant pain and
weakness of the right shoulder. He reported appellant’s inability to walk given the history of polio
and requirement of crutches to walk despite appellant’s shoulder conditions. Dr. Quach opined
that appellant was totally disabled.
In a June 15, 2017 letter, OWCP referred appellant for an impartial medical examination
with Dr. Eial Faierman, a Board-certified orthopedic surgeon.
In a report dated June 27, 2017, Dr. Faierman noted reviewing the SOAF, medical history,
and the medical record. He noted that appellant presented using a motorized wheelchair and
carried his crutches. A physical examination of both shoulders revealed nonanatomic tenderness
in all bony, tendon, and ligamentous surfaces; no swelling or effusion; full ROM of the shoulders;
apprehension testing was within normal limits; Yergason testing for biceps subluxation was
normal; and drop arm testing was negative. Dr. Faierman diagnosed right shoulder rotator cuff
repair/distal clavicle resection and left shoulder complaints. He noted that appellant had full ROM
in both shoulders and unrelated polio residuals of severe atrophy in the bilateral lower extremities.
Dr. Faierman advised that appellant had nonwork-related disability due to the polio. He noted that
appellant reached MMI and no longer required medical treatment as the rotator cuff repair was
successful and he had full ROM of both shoulders. Dr. Faierman noted that appellant’s weakness
made it difficult for him to walk prolonged distances or stand for prolonged periods of time due to
the preexisting polio and shoulder surgery. He opined that appellant was able to return to his
preinjury job, but the job must allow for a wheelchair and not require more than 10 pounds of
lifting. In a work capacity evaluation (OWCP-5c) dated June 27, 2017, Dr. Faierman provided
work restrictions for appellant, which were permanent. He noted that appellant was unable to
perform his regular job without restrictions as he was wheelchair bound except he could walk 10
feet on crutches. Dr. Faierman advised that appellant could work eight hours per day in a sedentary
position with restrictions of sitting for eight hours a day; repetitive movements of the wrists and
elbow for eight hours a day; pushing, pulling, and lifting limited to eight hours per day up to 10
pounds; no walking, standing, reaching, reaching above the shoulder, twisting, bending/stooping,
squatting, kneeling, climbing, operating a motor vehicle at work, or operating a motor vehicle to
and from work.
On August 22, 2017 OWCP inquired whether the employing establishment could offer
appellant a permanent position within the restrictions set forth in Dr. Faierman’s report. On
3

August 29, 2017 the employing establishment offered appellant the modified position of
inspectional aide at JFK International airport. The salary for the position was the same as
appellant’s current GS-7 Step 9 salary of $58,775.00. The job description listed that duties would
be performed up to eight hours a day and included answering the telephone and data input which
had minimal physical requirements and could be performed while sitting. The days off and the
available shift were from 7:00 a.m. to 3:00 p.m., Monday through Friday, with breaks taken when
required and around operational requirements or as directed by appellant’s attending physician.
On September 1, 2017 appellant, through counsel, indicated that he was medically unable
to accept the offered position as a result of continuing work-related disability. He further indicated
that he applied to the Office of Personnel Management (OPM) for disability retirement benefits.
In a September 1, 2017 report, Dr. Quach noted that appellant needed crutches for walking
and also had problems with prolonged walking.
In an e-mail dated October 11, 2017, the employing establishment confirmed that the lightduty job was wheelchair accessible.
In a letter dated October 26, 2017, OWCP advised appellant of its determination that the
inspectional aide position, offered by the employing establishment on August 29, 2017 was
suitable. It indicated that the position was based upon the opinion of Dr. Faierman, the impartial
medical examiner (IME), who opined that he was capable of working eight hours per day,
sedentary work, with restrictions. The employing establishment confirmed that the position
remained available to appellant. OWCP instructed him that he must, within 30 days, either accept
the position or provide a written explanation of the reasons he refused to accept the position.
Appellant was informed that he could lose his right to compensation pursuant to 5 U.S.C. § 8106(c)
of FECA.
On November 3, 2017 appellant, through counsel, responded to the October 26, 2017 letter
and indicated that he was medically unable to accept the offered position as the duties of the
assignment were inconsistent with his medical restrictions and disabilities. Counsel noted that the
report of Dr. Faierman was internally inconsistent, contradictory, and could not constitute the
special weight of the medical evidence. Appellant asserted that the report of Dr. Faierman should
be discounted and the medical evidence from appellant’s treating physicians should constitute the
weight of the medical evidence.
In a November 28, 2017 letter, OWCP found that the reasons appellant provided for
refusing the offered position were invalid. It gave him 15 additional days to accept the position or
to make arrangements to report to this position. OWCP noted that if appellant did not accept the
position within 15 days of the date of the letter, his right to wage-loss compensation and a schedule
award would be terminated pursuant to section 8106 of FECA. It would not consider any further
reasons for refusal of the offered position.
In a December 1, 2017 report, Dr. Quach indicated that appellant still required crutches to
walk more than 10 to 15 feet and was mostly wheelchair bound due to his lower extremity issues.
He noted that appellant was status post right shoulder surgery and was applying for long-term
disability given his other comorbidities. Dr. Quach noted that appellant was applying for OPM
long-term disability benefits given his other comorbidities.

4

In a letter dated December 4, 2017, appellant, through counsel, indicated that he was
medically unable to accept the offered position as the duties of the assignment were inconsistent
with his medical restrictions and disabilities. Counsel noted that the report of Dr. Faierman was
internally inconsistent, contradictory, and could not constitute the special weight of the medical
evidence. He also alleged that the assignment was inconsistent with his medical restrictions and
disabilities.
By decision dated December 19, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to a schedule award, effective December 20, 2017, finding that he
had refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c).
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits.4 Section 8106(c)(2) of FECA provides that
a partially disabled employee who refuses or neglects to work after suitable work is offered to,
procured by, or secured for the employee is not entitled to compensation.5 To justify termination
of compensation, OWCP must show that the work offered was suitable and must inform appellant
of the consequences of refusal to accept such employment.6 Section 8106(c) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.7
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work,
and other relevant factors.8 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. All impairments, whether work related or not, must be
considered in assessing the suitability of an offered position.9
Section 8123(a) of FECA provides in pertinent part that, if there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.10 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and

4

S.D., Docket No. 18-1641 (issued April 12, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

6

S.D., supra note 4; Ronald M. Jones, 52 ECAB 406 (2003).

7

S.D., id.; Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(c) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
9

L.L., Docket No. 17-1247 (issued April 12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle
Harris, 52 ECAB 319 (2001).
10

5 U.S.C. § 8123(a).

5

who has no prior connection with the case.11 When there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an IME for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.12
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective December 20, 2017, for refusing an
offer of suitable work pursuant to 5 U.S.C. § 8106(c).
OWCP accepted that, as a result of the May 4, 2015 employment injury, appellant sustained
a right shoulder sprain and a partial tear of the right rotator cuff and he underwent arthroscopic
surgery. Dr. Quach opined that appellant was unable to return to work noting that his history was
significant for polio and he wore braces on his legs and relied on crutches to ambulate. Appellant
was referred for a second opinion evaluation with Dr. Goldman who opined that appellant was
unable to returning to his date-of-injury job, but could work four hours a day through
September 2016 and then increase to an eight-hour day with restrictions secondary to the surgery.
OWCP properly found a conflict in the medical opinion evidence and referred appellant to
Dr. Faierman for an impartial medical examination.13
In a June 27, 2017 impartial medical examination report, Dr. Faierman noted that appellant
had full ROM in both shoulders and unrelated polio with severe atrophy in the bilateral lower
extremities. He opined that appellant was able to return to his preinjury job, however, the job must
allow for a wheelchair and not require more than 10 pounds of lifting. Dr. Faierman provided
detailed permanent work restrictions and also noted that appellant was wheelchair bound except
he could walk 10 feet on crutches. The Board finds that Dr. Faierman’s opinion is entitled to the
special weight of the medical evidence accorded an IME because he based his opinion as to
appellant’s ability to return to employment on a proper factual background, after a review of the
medical record, and following physical examination and provided a well-rationalized opinion that
appellant was capable of a sedentary level of light-duty work.
On August 29, 2017 the employing establishment offered appellant a limited-duty position
as inspectional aide. The employing establishment listed the duties of the position to be performed
up to eight hours a day included answering the telephone and data input which could be performed
while sitting. The physical requirements of the position were minimal and breaks were permitted
as medically necessary. The Board finds that the physical requirements of the offered position of
inspectional aide fell within appellant’s work restrictions as provided by Dr. Faierman. The weight
of the evidence of record establishes that appellant was no longer totally disabled from work and
had the physical capacity to perform the duties listed in the August 29, 2017 job offer. Thus,
OWCP properly relied on Dr. Faierman’s opinion in finding the inspectional aide position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised
appellant on October 26, 2017 that it found that the job offer of inspectional aide to be suitable and
11

20 C.F.R. § 10.321.

12

K.S., Docket No. 19-0082 (issued July 29, 2019).

13

Id.

6

afforded him an opportunity to provide reasons for refusing the position within 30 days. Following
appellant’s reply it advised him, in a November 28, 2017 letter, that his reasons for refusing were
deficient and properly allowed 15 additional days to accept the offered position. The Board finds
that OWCP followed the established procedures prior to the termination of his wage-loss
compensation pursuant to section 8106(c).
Subsequent to the November 28, 2017 letter from OWCP, appellant submitted a
December 1, 2017 report from Dr. Quach, who indicated that appellant required crutches to walk
more than 10 to 15 feet and was mostly wheelchair bound due to his lower extremity issues.
Dr. Quach noted that appellant was applying for OPM long-term disability benefits given his other
comorbidities. Dr. Quach, however, was on one side of the conflict in the medical opinion that
Dr. Faierman resolved, and his report and progress notes are thus insufficient to overcome the
special weight accorded the impartial specialist or to create a new medical conflict.14
The Board finds that the position offered to appellant was medically and vocationally
suitable and OWCP complied with the procedural requirements of section 8106(c) and therefore
OWCP has met its burden of proof to terminate his wage-loss compensation benefits and
entitlement to a schedule award based on his refusal to accept the offered position.
On appeal counsel asserts that appellant was medically unable to accept the offered position
as duties of the assignment were inconsistent with his medical restrictions and disabilities. He
further asserted that the report of Dr. Faierman was internally inconsistent, contradictory, and
could not constitute the special weight of the medical evidence. As discussed above, the Board
finds that OWCP properly referred appellant to Dr. Faierman to resolve the conflict in the medical
opinion evidence and that his opinion was well rationalized and sufficient to establish that the
offered position was suitable.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective December 20, 2017, for refusing an
offer of suitable work pursuant to 5 U.S.C. § 8106(c).

14

Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Baton Rouge, LA, Employer
__________________________________________

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

Docket No. 09-2333
Issued: June 9, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant filed a timely appeal from the July 1, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for merit
review. The last merit decision was the Office’s September 13, 2006 decision denying her claim
that she sustained physical and emotional conditions in the performance of duty. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the nonmerit decision. Because
more than one year has elapsed between the last merit decision and the filing of this appeal on
September 23, 2009, the Board lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that her request was untimely filed and failed to establish
clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3(e).

FACTUAL HISTORY
This is the second appeal in this case. In an August 13, 2008 decision, the Board affirmed
an October 12, 2007 nonmerit Office decision finding that it properly denied appellant’s request
for reconsideration.2 The Board found that the evidence and arguments submitted by appellant
were not relevant to the issue of whether she had established a physical or emotional condition due
to the accepted events of September 2001.3 The facts of the case are set forth in the Board’s prior
decision and are incorporated herein by reference.
In a June 18, 2009 letter, appellant requested reconsideration before the Office,
contending it was her understanding that the only thing holding up the acceptance of her claim
was the fact that the diagnosis of her post-traumatic stress disorder was made by a clinical
psychologist rather than a psychiatrist. She also asserted that the events of September 2001
aggravated her preexisting back injuries. Appellant submitted a May 8, 2009 report from
Dr. Sandra R. Weitz, an attending anesthesiologist, who stated that, in Louisiana testing,
diagnosis and counseling for a condition such as post-traumatic stress disorder would be
provided by a clinical psychologist and that medication would be provided by a psychiatrist.
Dr. Weitz advised that appellant’s post-traumatic stress disorder was appropriately diagnosed by
her clinical psychologist.
In a July 1, 2009 decision, the Office denied appellant’s request for further review of the
merits of her claim as it was untimely filed and failed to demonstrate clear evidence of error. It
determined that she filed an untimely request for reconsideration because her reconsideration
request was filed on June 18, 2009, more than one year after the Office’s most recent merit
decision of September 13, 2006. The Office found that the argument and evidence submitted in
support of the request did not show clear evidence of error in the Office’s decisions denying her
claim.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.4 The
2

Docket No. 08-707 (issued August 13, 2008). On December 11, 2001 appellant, then a 52-year-old industrial
hygienist, filed a claim alleging that she sustained injury to her neck and back while she was on a mandatory travel
assignment to attend training classes in Washington, DC. She was in the Frances Perkins Building of the
Department of Labor on September 11, 2001 and was directed to leave the building due to the terrorist attacks on
that date. Regarding the cause of her injury, appellant stated, “I walked down 5 flights, walked 2.5 hours to my
hotel, drove 17 hours to get to Memphis airport and waited 9 hours for delayed flight to get home.” She claimed
that employing establishment officials advised her and a coworker to make alternate plans to return home earlier
than originally scheduled. Appellant also claimed that the events of September 2001 caused her to sustain posttraumatic stress disorder.
3

In a July 7, 2005 decision, the Office accepted that appellant had established employment factors with respect to
her efforts to leave Washington, DC and return home, but found that she did not submit sufficient medical evidence
to establish a physical or emotional condition due to those factors. In a September 13, 2006 decision, it affirmed its
July 7, 2005 decision and, in an October 12, 2007 decision, it denied appellant’s request for merit review.
4

20 C.F.R. § 10.607(a).

2

Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.5
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes “clear evidence of error.”6 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.8 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.12
ANALYSIS
Appellant claimed that she sustained physical and emotional injuries due to events
surrounding the terrorist attacks of September 11, 2001. In July 7, 2005 and September 13, 2006
decisions, the Office accepted that she had established employment factors with respect to her
efforts to leave Washington, DC and return home on September 11, 2001. It denied appellant’s
claim because she did not submit sufficient medical evidence to establish that she sustained a
physical or emotional condition due to the accepted factors.
5

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c.
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

See Leona N. Travis, 43 ECAB 227, 240 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See Leona N. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

3

In a July 1, 2009 decision, the Office refused to reopen appellant’s case for further review
of the merits finding that her request was untimely filed and failed to demonstrate clear evidence
of error. It properly determined that she filed an untimely request for reconsideration.
Appellant’s reconsideration request was filed on June 18, 2009, more than one year after the
Office’s last merit decision dated September 13, 2006. Therefore, she must demonstrate clear
evidence of error on the part of the Office in its decisions denying her claim.
Appellant has not demonstrated clear evidence of error on the part of the Office in the
July 5, 2005 or September 13, 2006 decision. She did not submit positive, precise and explicit
evidence which manifests on its face that the Office committed an error in the denial of her
claim.
Appellant contended that it was her understanding that the only thing holding up the
acceptance of her claim was the fact that the diagnosis of her post-traumatic stress disorder was
made by a clinical psychologist rather than a psychiatrist. She submitted a May 8, 2009 report of
Dr. Weitz, an attending anesthesiologist, who indicated that in Louisiana testing, diagnosis and
counseling for a condition such as post-traumatic stress disorder would be provided by a clinical
psychologist and that medication would be provided by a psychiatrist.13
The Board notes that appellant’s claim for a work-related emotional condition was not
denied on the basis that her post-traumatic stress disorder had been diagnosed by a clinical
psychologist. The Office accepted that she established employment factors with respect to her
efforts to leave Washington, DC and return home after the terrorist attacks of September 11, 2001,
but found that she did not submit sufficient medical evidence to establish her claim. It weighed the
reports of appellant’s clinical psychologist as medical evidence but found that he did not provide
sufficient medical opinion to establish the causal relationship of her diagnosed condition to the
accepted factors. Therefore, appellant’s argument and evidence has no bearing on the reason for
the denial of her claim for a work-related emotional condition. She has not established clear
evidence of error in the Office’s denial of her claim.
Appellant also asserted that the events of September 2001 aggravated her preexisting
back injuries.14 However, the underlying issue of the present case is medical in nature.
Appellant’s opinion as to the cause of her back condition would not have any probative medical
value. She has not shown clear evidence of error in the Office’s denial of her claim for a workrelated back condition.
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of the Office’s July 5, 2005 or September 13, 2006 decision.
The Office properly determined that appellant did not show clear evidence of error in the denial
of her claim for compensation.
13

Dr. Weitz also indicated that appellant’s post-traumatic stress disorder was appropriately diagnosed by her
clinical psychologist. On appeal, to the Board, appellant again argued that her claim for a work-related emotional
condition should be accepted because her post-traumatic stress disorder had appropriately been diagnosed by a
clinical psychologist.
14

On appeal, to the Board, appellant again argued that her physical condition had been aggravated by the events
of September 2001.

4

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that her request was untimely filed and failed to demonstrate
clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the July 1, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 9, 2010
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1760
Issued: October 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 20, 2019 appellant, through counsel, filed a timely appeal from a June 26, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 26, 2019 decision, OWCP received additional evidence. Appellant also
submitted additional evidence on appeal. The Board’s Rules of Procedure provides: “The Board’s review of a case
is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not
before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

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 permanent aggravation of preexisting degenerative
spinal conditions as a consequence of his accepted September 13, 2017 employment injury.
FACTUAL HISTORY
On September 15, 2017 appellant, then a 41-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 13, 2017 when delivering his route, he ran from an
aggressive dog and fell backward onto the hood of a vehicle, then to the ground while in the
performance of duty. He stopped work briefly at the time of injury and returned to light-duty
work.
On September 13, 2017 Dr. Erik Cohen, a physician specializing in occupational medicine,
examined appellant. In reports through September 19, 2017, he described the claimed
September 13, 2017 employment incident and noted appellant’s history of a C6-7 fusion
approximately five years previously. Dr. Cohen diagnosed cervical, thoracic, and lumbar sprains,
and a left forearm abrasion.4
On September 26, 2017 OWCP accepted the claim for cervical, thoracic, and lumbar spine
sprains and an abrasion of the left forearm.
In a September 28, 2017 report, Dr. Vernon Williams, a physician specializing in
emergency medicine, noted increasing cervical spine symptoms.5
In an October 2, 2017 report, Dr. Robert Waldrop, a Board-certified orthopedic surgeon
specializing in spine surgery, noted the September 13, 2017 employment incident and appellant’s
history of anterior discectomy and fusion at C6-7. He related appellant’s symptoms of cervical
spine pain with radiation to both shoulders and significantly limited cervical motion. On
examination Dr. Waldrop found decreased sensation in the C8, T1, and T2 dermatomes of the right
upper extremity and the C8 dermatome of the left upper extremity.
Appellant stopped work on October 6, 2017. He filed claims for wage-loss compensation
(Form CA-7) for disability while in a leave-without-pay status for the period November 3, 2017
and continuing.
In a November 13, 2017 report, Dr. Waldrop noted improvement in appellant’s cervical
spine symptoms, but had an increase in lumbar pain. He diagnosed degenerative lumbar
spondylolisthesis, with pain symptoms exacerbated by the September 13, 2017 injury.
Dr. Waldrop held appellant off work beginning November 11, 2017.

4

A September 30, 2017 magnetic resonance imaging scan showed multilevel degenerative disc disease throughout
the cervical spine, severe canal stenosis at C4-5, moderate stenosis at C5-6, and status post anterior discectomy and
fusion at C6 and C7.
5

Appellant participated in physical therapy treatments in October 2017.

2

In a development letter dated January 5, 2018, OWCP requested additional information
regarding appellant’s claims for total disability compensation, commencing November 3, 2017
and continuing. It afforded him 30 days to submit such evidence.
In a January 15, 2018 report, Dr. Waldrop opined that appellant’s spinal conditions were
painful and limited his activities of daily living. He noted that appellant required additional
imaging studies to assess his condition.
Dr. Waldrop, in a February 5, 2018 report, diagnosed a cervical strain, largely resolved,
degenerative lumbar spondylolisthesis, and lumbar stenosis with neurogenic claudication.6
In a February 20, 2018 letter, OWCP requested that Dr. Waldrop provide medical rationale,
explaining whether the accepted September 13, 2017 employment injury caused a temporary or
permanent aggravation of a preexisting degenerative spinal condition. It afforded him 30 days to
submit the requested evidence. No response was received.
By decision dated February 21, 2018, OWCP denied appellant’s claim for compensation
for disability, commencing November 3, 2017, as he submitted insufficient rationalized medical
evidence to establish that the accepted September 13, 2017 employment injury disabled him for
work for the claimed period.
By decision dated March 26, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include an aggravation of preexisting degenerative spondylolisthesis as work
related.
Appellant continued to submit evidence. In a March 19, 2018 report, Dr. Waldrop
diagnosed cervical strain, lumbar spinal stenosis, and degenerative spondylolisthesis. He opined
that, while the September 13, 2017 employment injury fall did not cause degenerative
spondylolisthesis, “a hard fall can cause an asymptomatic degenerative spondylolisthesis to
present with symptoms. This new occurrence of symptoms would be considered an aggravation
of asymptomatic preexisting pathology.”
In an April 12, 2018 report, Dr. Waldrop noted increasing right-sided lumbar radiculopathy
into the right buttock and hip. He continued to hold appellant off from work.
On August 2, 2018 OWCP referred appellant to Dr. Michael Steingart, a Board-certified
orthopedic surgeon specializing in spine surgery, for a second opinion evaluation regarding the
nature and extent of the injury-related conditions. It provided a copy of the medical record and a
statement of accepted facts (SOAF) and a series of question for his review. In a report dated
September 12, 2018, Dr. Steingart provided a history of injury and treatment, and reviewed the
medical record and SOAF. He noted that, while imaging studies of record did not demonstrate a
lumbar spondylolisthesis, he agreed with Dr. Waldrop that the September 13, 2017 employment
injury caused a temporary aggravation of a preexisting lumbar degenerative condition, most
markedly at L4-5. However, Dr. Steingart was unable to indicate a cessation of the aggravation.

6

On February 21, 2018 appellant underwent bilateral L3, L4, and L5 medial branch nerve block injections.

3

On November 7, 2018 OWCP accepted a temporary aggravation of lumbar intervertebral
disc disorders. It paid appellant compensation for temporary total disability on the periodic rolls
beginning November 11, 2018.
On December 26, 2018 appellant requested reconsideration of the February 21, 2018
decision. He submitted additional reports from Dr. Waldrop dated from November 21 to
December 18, 2018, noting that preexisting lumbar spondylosis, degenerative spondylolisthesis,
and lumbar stenosis remained aggravated by the accepted September 13, 2017 employment
injury.7
By decision dated January 9, 2019, OWCP denied appellant’s December 26, 2018
reconsideration request as he did not submit relevant or pertinent new evidence warranting a
review of the merits of the claim.
In a development letter dated January 10, 2019, OWCP requested additional evidence and
provided 20 days to respond.
In a January 15, 2019 report, Dr. Waldrop noted that appellant had some symptomatic
relief following a lumbar epidural injection. He submitted periodic reports through March 5, 2019
holding appellant off from work.8
On February 6, 2019 OWCP requested a district medical adviser (DMA) answer a series
of questions relative to whether the accepted September 13, 2017 employment injury aggravated
degenerative lumbar spondylolisthesis. It noted that the DMA referral was necessary due to the
complex nature of appellant’s spinal conditions. In a February 12, 2019 report, Dr. Kenechukwu
Ugokwe, a Board-certified neurosurgeon serving as DMA, opined that appellant had an L4-5
retrolisthesis rather than a lumbar spondylolisthesis. He agreed with Dr. Steingart that appellant
had a “degenerative condition that was previously asymptomatic and that the work injury caused
a temporary aggravation of this degenerative condition.”
OWCP found a conflict of medical opinion between Dr. Steingart, for the government, and
Dr. Waldrop, for appellant, regarding the nature and extent of the conditions caused or aggravated
by the accepted September 13, 2017 employment injury. It selected Dr. Amit Sahasrabudhe, a
Board-certified orthopedic surgeon, specializing in sports medicine, as an impartial medical
specialist.
In a report dated May 6, 2019, Dr. Sahasrabudhe reviewed the SOAF and medical record
and noted findings on examination. He noted that appellant’s symptoms had “evolved” in a
“migratory” pattern, with right-sided weakness and sensory loss beginning at L5, then progressing
to L4, L3, and S1. Dr. Sahasrabudhe opined that, “as a non-spinal surgeon, but a general
orthopedist, with orthopedic surgical residency training to include spinal surgery/spine
evaluations, there is no objective explanation for how [appellant’s] complaints could have ‘evolved
and migrated’ in the manner that appears to have been documented/demonstrated in the medical
7

A December 14, 2018 electromyography and nerve conduction velocity study showed slightly increased
polyphasic potentials of the right anterior tibialis, and increased motor amplitude of the right vastus medialis.
8

On February 13, 2019 appellant underwent right L3-4 and L5-S1 epidural injections.

4

records.” He characterized any aggravation of preexisting degenerative disc disease as temporary
in nature. In the final comment section of his report, Dr. Sahasrabudhe stated, “if there is any
question as to the validity of this examination as well as whether spine surgery is indicated,
regardless of causation, I would suggest a similar evaluation from a board-certified orthopaedic
spine surgeon, one who is fellowship-trained in spine surgery.”
By decision dated June 26, 2019, OWCP denied modification of the March 26, 2018
decision based on Dr. Sahasrabudhe’s opinion as representing the special weight of the medical
evidence.
LEGAL PRECEDENT
The claimant bears the burden of proof to establish a claim for a consequential injury.9 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.11 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents, is sufficient to establish causal
relationship.12
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The basic rule is that,
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.13
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.14 OWCP’s implementing 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. This is called a referee examination and OWCP will
9

I.S., Docket No. 19-1461 (issued April 30, 2020).

10

K.W., Docket No. 18-0991 (issued December 11, 2018).

11

G.R., Docket No. 18-0735 (issued November 15, 2018).

12

Id.

13

K.S., Docket No. 17-1583 (issued May 10, 2018).

14

5 U.S.C. § 8123(a).

5

select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.15 Where a case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.16
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP properly determined that a conflict of medical opinion existed between
Dr. Waldrop, appellant’s treating physician, and Dr. Steingart, the second opinion examiner, on
the issue of whether appellant sustained an aggravation of a degenerative lumbar spinal condition
as a consequence of appellant’s accepted September 13, 2017 employment injury. Accordingly,
it referred him to Dr. Sahasrabudhe for an impartial medical examination and an opinion to resolve
the conflict, pursuant to 5 U.S.C. § 8123(a).17 As noted, when a case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual background, must be given special
weight.18
The Board finds that the report of Dr. Sahasrabudhe is insufficient to carry the special
weight of the medical evidence. In a May 6, 2019 report, Dr. Sahasrabudhe reviewed the medical
record and SOAF, and noted findings on examination as requested. However, he prefaced his
opinion as to whether the accepted employment injury aggravated preexisting degenerative spinal
conditions with the proviso that he was not a spine surgeon. Dr. Sahasrabudhe opined that, “as a
non-spinal surgeon, but a general orthopedist, with orthopedic surgical residency training to
include spinal surgery/spine evaluations, there is no objective explanation for how [appellant’s]
complaints could have ‘evolved and migrated’ in the manner that appears to have been
documented/demonstrated in the medical records.” He characterized any aggravation of
preexisting degenerative disc disease as temporary in nature. In the final comment section of his
report, Dr. Sahasrabudhe stated, “if there is any question as to the validity of this examination as
well as whether spine surgery is indicated, regardless of causation, I would suggest a similar
evaluation from a Board-certified orthopedic spine surgeon, one who is fellowship-trained in spine
surgery.” These statements indicate that he did not consider himself qualified to render the opinion
that he was selected to provide. This is particularly crucial in this case, as OWCP had noted in its
February 6, 2019 memorandum to the DMA that appellant’s spinal conditions were particularly
complex. The Board finds, therefore, that Dr. Sahasrabudhe’s report does not represent the special
weight of the medical evidence in this case.19 The case will be remanded to OWCP for selection
of a new impartial medical specialist with appropriate qualifications to resolve the conflict of
15

20 C.F.R. § 10.321.

16

V.K., Docket No. 19-0422 (issued June 10, 2020); K.C., Docket No. 19-1251 (issued January 24, 2020); V.K.,
Docket No. 18-1005 (issued February 1, 2019); D.M., Docket No. 17-1411 (issued June 7, 2018).
17

V.K., id.; G.B., Docket No. 19-1510 (issued February 12, 2020); R.H., 59 ECAB 382 (2008).

18

V.K., id.; D.M., supra note 16.

19

Id.

6

medical opinion between Dr. Waldrop and Dr. Steingart. Following this and any further
development deemed necessary, it shall issue a de novo decision.20
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2019 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.21
Issued: October 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

V.K., supra note 16.

21
The Board notes that the case file as transmitted to the Board, located at received date September 18, 2017,
contains a medical report of another claimant, D.C. Upon return of the case file, OWCP shall associate this report
with the proper case file.

7