United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Santa Clara, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1391
Issued: February 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 25, 2011 appellant, through her attorney, filed a timely appeal from the Office of
Workers’ Compensation Programs’ (OWCP) December 1, 2010 decision denying her claim for
recurrence of disability. 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.

1

5 U.S.C. 8101 et seq.

ISSUE
The issue is whether appellant sustained a recurrence of disability as of May 10, 2007
causally related to her accepted acute reactive asthma condition.2
On appeal, appellant’s attorney argues that the report of OWCP’s second opinion
physician was incomplete and poorly rationalized. Alternatively, he contends that there is a
conflict in medical opinion between appellant’s treating physician and the second opinion
physician.
FACTUAL HISTORY
On November 11, 2006 appellant, then a 39-year-old air traffic controller, filed a
traumatic injury claim alleging that she experienced dizziness, swelling and redness of her throat,
headache and a dry cough on November 10, 2006 due to exposure to toxic fumes produced by a
sealant used during the installation of an heating, ventilation and air conditioning unit in the
tower at the San Jose Municipal Airport where she worked.3 Her claim was accepted for acute
reactive asthma.
Appellant was treated by Dr. Safa Nsouli, who specializes in the treatment of asthma and
allergies. Dr. Nsouli diagnosed asthma pursuant to chemical exposure at work and instructed
appellant to avoid any exposure to diisocyanates.
In a January 12, 2007 report, Dr. Robert Kosnik, Board-certified in the field of
occupational medicine, provided a history of injury and treatment, noting that appellant had been
exposed to toluene diisocyanate in 1997. He opined that the November 2006 exposure to the
sealant, which contained toluene diisocyanate, initiated an asthmatic response in appellant, who
had previously been sensitized. Dr. Kostik recommended that appellant be removed from the
workplace in order to avoid exposure to even the slightest amount of toluene diisocyanate, which
could bring on an asthmatic reaction.
On March 5, 2007 appellant returned to work as an air traffic controller at the San
Franciso International Airport (SFO), where she worked until May 11, 2007 when she stopped
working and filed claims for total disability beginning that date. She also submitted claims for
lost wages due to medical appointments for March 6 and May 4, 2007. In a letter dated May 21,
2007, appellant stated that she sustained an asthma attack at work on May 10, 2007. The record

2

The Board notes that the December 1, 2010 decision framed the issues presented to include a determination as to
whether appellant was entitled to wage-loss compensation for medical appointments on March 6 and May 4, 2007.
The claims examiner did not, however, issue a ruling on that issue. Therefore, the Board does not have jurisdiction
over that issue. See 20 C.F.R. § 501.2(c) (the Board has jurisdiction to consider and decide appeals from final
decisions; there shall be no appeal with respect to any interlocutory matter disposed of during the pendency of the
case).
3

In a December 28, 2006 statement, appellant also alleged that she was exposed to the toxic fumes from
November 9 to 14, 2006 and on November 24, 27 and 30, 2006. As she alleged exposure on several separate
occasions, OWCP treated her claim as one for an occupational disease.

2

contains a May 10, 2007 emergency room report reflecting that she was treated on that date for
an asthma condition.
In a note dated May 10, 2007, Dr. David Arrowsmith, Board-certified in emergency
medicine, stated that he had examined appellant on that date and that her wheezing was relieved
by the use of an inhaler. He indicated that she was disabled from work from May 10 to 13, 2007.
In a May 14, 2007 disability slip, Dr. Nsouli placed appellant off work until she could be
evaluated by a toxicologist.
In a June 20, 2007 report, Dr. Nsouli stated that appellant had been permanently
sensitized to isocyantes and that continued exposure to even trace amounts for prolonged periods
could be life threatening. He noted that pulmonary function testing showed significant
improvement in February 2007, prior to her return to work. Following appellant’s return to the
San Francisco tower, where she experienced another asthma attack, May 14, 2007 testing
showed a significant decrease in lung function. Dr. Nsouli diagnosed allergic reaction and
sensitization to isocyantes and acute reactive asthma caused by repeated exposure to isocyanates
in the workplace. He concluded that the unique work environment of an air traffic control tower
contains pollutants that while not dangerous to the general public, caused appellant to experience
acute asthma symptoms due to her sensitization to isocyanates.
On July 13, 2007 the employing establishment stated that it had no medical
documentation of appellant’s visits to a physician on the claimed dates. It further contended that
her claim should be developed as a separate claim, as it related to claimed exposure at a separate
facility, namely SFO rather than San Jose Municipal Airport.
OWCP referred appellant to Dr. Hsien-Wen Hsu, a Board-certified pulmonologist, for a
second opinion medical examination and an opinion as to the cause of appellant’s current
condition and her work capacity. Dr. Hsu was instructed to base his opinion solely on the
attached statement of accepted facts (SOAF). The June 12, 2007 SOAF provided that on or
about November 9, 2006 appellant was exposed to, and inhaled, residual fumes of a Vulkem 642
sealant used during construction in the ceiling area of the Tower Cab in which she worked, and
that her claim was accepted for acute reactive asthma attack as the work-related condition.
In a report dated August 16, 2007, Dr. Hsu provided a history of appellant’s condition
and treatment and a review of diagnostic testing. He also provided examination findings related
to her abdomen, liver, kidney, spleen and musculoskeleton. Dr. Hsu diagnosed reactive asthma,
which he opined was causally related to the accepted chemical exposure. Noting appellant’s
prior sensitization in 1997 of toluene diisocyanate and reexposure of Vulkem 642 on
November 10, 2006, he stated: “It is well known that patients once exposed to isocyanate
compound are sensitized for life and should be considered permanently sensitized. There is no
known lower threshold limit as not to cause new asthma attack.”
Dr. Hsu opined that appellant continued to suffer residuals of the work injury due to
asthma, although she would be symptom free so long as she was removed from her usual
workplace. He indicated that when she returned to work at SFO between March 5 and May 10

3

2007, she experienced progressive worsening of her symptoms to the point that another
emergency room visit was required. Dr. Hsu stated:
“Even [when] the isocyanates are ‘within or below’ OSHA mandated limits, there
will still be allergic and respiratory consequences when [appellant] is [reexposed]
to the substance. In this instance, unfortunately, I tend to also believe that even
lower than detectable levels of isocyanate is likely to be present and cause new
respiratory symptoms at above mentioned place. There is no stated threshold
level.”
In response to OWCP’s inquiry regarding appellant’s claim of disability due to the
accepted injury, Dr. Hsu stated:
“The disability began November 9, 2006 and at all times, the disability will last
until new work location is assigned. Time off from work if would no longer be
medically necessary when [appellant] is completely removed from the above
mentioned Tower Cab of San Jose Airport.”
Dr. Hsu stated that appellant could work in another workplace and in public in general.
However, returning to the tower cab at San Jose Airport was “strongly not advisable.” Dr. Hsu
opined that appellant could return to full duty at a different location, but that chemical exposure
should be avoided.
In a July 17, 2007 letter, OWCP informed appellant that the evidence of record was
insufficient to establish that she was disabled during the claimed period due to her accepted
injury or that she was entitled to compensation for time lost for medical appointments. It advised
her to submit a rationalized medical report explaining how her claimed disability was causally
related to her accepted November 10, 2006 injury.
In a report dated October 1, 2007, Dr. Nsouli opined that placing appellant at an airport
environment with known isocyanate chemicals from jet exhaust was not advisable. Although it
is assumed isocyanate levels are less than Occupational Safety and Health Administration
(OSHA) guidelines in any airport environment, it would be contradictory to the avoidance of
exposure statement to recommend suitable work at such a location.
By decision dated October 18, 2007, OWCP denied appellant’s claim for total disability
beginning May 11, 2007 and for benefits for medical appointments on March 6 and 4, May 2007.
On the grounds that the medical evidence failed to establish that she was disabled or missed
work due to her accepted injury. OWCP found that the weight of the medical evidence was
contained in Dr. Hsu’s second opinion report, which established that she was capable of working
at SFO.
On December 3, 2007 appellant requested reconsideration. She submitted a copy of a
July 1, 2003 report on the topic of hazardous air pollutants associated with aircraft, airports and
aviation. Appellant contended that Dr. Hsu reviewed the report, he would have opined that work
in any airport would exacerbate her asthma condition.
By decision dated March 3, 2008, OWCP denied modification of its prior decision.
4

On January 30, 2009 appellant again requested reconsideration. She noted that she had
taken disability retirement as of October 7, 2007 due to the employing establishment’s inability
to accommodate her asthma condition.
In a January 6, 2010 decision, OWCP again denied modification of its prior decisions.
On February 8, 2010 appellant submitted an occupational disease claim, Form CA-2,
alleging that she had sustained a new injury at SFO on May 10, 2007. She stated that once she
began working at SFO, she needed to use her inhaler on a daily basis to alleviate asthma
symptoms. By May 10, 2007, appellant was no longer able to control the symptoms with the
inhaler. She opined that exposure to toxins at the airport such as xylene and toluene brought on
her symptoms.
In a letter dated February 17, 2010, OWCP informed appellant that her February 8, 2010
occupational disease claim was duplicative of her November 25, 2006 claim, which had been
previously addressed. Appellant was advised that she must pursue the appeal rights associated
with that claim.
On August 30, 2010 appellant, through counsel, requested reconsideration of the
January 6, 2010 decision, contending that OWCP had improperly relied on Dr. Hsu’s report in
denying the recurrence claim because it was not well rationalized. Counsel argued that the
SOAF was defective in that it failed to state that appellant had been reassigned to SFO from
March 7 to May 11, 2007. Further, OWCP had failed to ask Dr. Hsu for an opinion as to
whether exposure to fumes containing isocyanate components at SFO had caused or contributed
to the asthma attack that caused the May 11, 2007 work stoppage. Alternatively, counsel argued
that a conflict in medical opinion existed between Dr. Nsouli and Dr. Hsu.
By decision dated December 1, 2010, OWCP denied modification of its prior decisions,
finding that the weight of the medical evidence was represented by Dr. Hsu’s August 16, 2007
second opinion report, which was unequivocal and based on objective findings. The claims
examiner found that the SOAF was not defective due to its failure to include reference to
appellant’s position at SFO, because appellant informed Dr. Hsu of her position at SFO from
March 5 to May 11, 2007.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical

4

20 C.F.R. § 10.5(x).

5

requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5
Appellant has the burden to establish by the weight of the substantial, reliable and
probative evidence a causal relationship between his recurrence of disability and her employment
injury.6 This burden includes the necessity of furnishing medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to employment factors and supports that conclusion with
sound medical reasoning.7
ANALYSIS
The Board finds that this case is not in posture for a decision. OWCP found that the
medical evidence failed to establish that appellant was disabled as of May 11, 2007 due to her
accepted injury, based on Dr. Hsu’s August 16, 2007 second opinion report. The Board finds,
however, that Dr. Hsu’s report is insufficient to form the basis of OWCP’s December 1, 2010
decision.
Appellant’s treating physicians opined that appellant was disabled as of May 11, 2007 as
a result of her accepted condition. On May 14, 2007 Dr. Nsouli placed her off work based on
pulmonary testing that showed a significant decrease in lung function. On June 20, 2007 he
stated that appellant had been permanently sensitized to isocyantes and that continued exposure
to even trace amounts for prolonged periods could be life threatening. Noting that appellant had
experienced another asthma attack following her return to the San Francisco tower, Dr. Nsouli
concluded that the unique work environment of an air traffic control tower contains pollutants
that while not dangerous to the general public, caused appellant to experience acute asthma
symptoms due to her sensitization to isocyanates. On October 1, 2007 he opined that placing her
at an airport environment with known isocyanate chemicals from jet exhaust was not medically
advisable. On May 10, 2007 Dr. Arrowsmith examined appellant and opined that she was
disabled from work from May 10 through 13, 2007. While the treating physicians’ reports are
not sufficiently rationalized to establish conclusively that appellant was disabled as of May 11,
2007 due to her accepted acute reactive asthma condition, they strongly support her claim.
Moreover, they are not contradicted by any other medical evidence of record, including
Dr. Hsu’s second opinion report.
OWCP referred appellant to Dr. Hsu for an opinion as to the cause of appellant’s current
condition and her work capacity. Dr. Hsu was instructed to base his opinion solely on the SOAF,
which provided that appellant was exposed to residual fumes of a Vulkem 642 sealant on
November 9, 2006 in the ceiling area of the Tower Cab in which she worked, and that her claim
was accepted for acute reactive asthma attack. The Board finds that his report is unclear and

5

Id.

6

Carmen Gould, 50 ECAB 504 (1999).

7

Mary A. Ceglia, 55 ECAB 626 (2004).

6

fails to provide an unequivocal opinion on the relevant issue in this case, namely whether
appellant was disabled from work as of May 11, 2007 due to the accepted asthma condition.
Dr. Hsu agreed that appellant’s reactive asthma was causally related to the accepted
chemical exposure and that she should be considered permanently sensitized. He implied that
her May 10, 2007 asthma attack was caused by exposure to toxins at SFO following her return
to work on March 5, 2007, noting that she experienced a progressive worsening of her injuryrelated symptoms to the point that another emergency room visit was required. Dr. Hsu did not,
however, provide an unequivocal opinion as to whether the May 10, 2007 asthma attack was a
consequence of the accepted injury or a new injury due to a new exposure.8 For this reason, the
report is of diminished probative value.
Dr. Hsu’s opinion was also based upon an incomplete SOAF, which failed to inform him
that appellant began working at SFO on March 5, 2007. Although appellant informed him of her
relocation, Dr. Hsu’s statement that time off from work would no longer be medically necessary
if appellant were completely removed from the “Tower Cab of San Jose Airport” reflects
confusion on his part as to where she was working on May 10, 2007.
Proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested
arbiter.9 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.10 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.11 As it undertook development of the
medical evidence by referring appellant to Dr. Hsu, it had an obligation to secure a report
adequately addressing the relevant issue.12 The obligation continues until it receives a proper
report. Therefore, the case shall be remanded to OWCP for a supplemental opinion from
Dr. Hsu, which provides clarification and elaboration. If Dr. Hsu is unwilling or unable to
clarify and elaborate on his opinion, the case should be referred to another appropriate specialist.
On remand, OWCP should also develop the evidence regarding appellant’s claim that she
was exposed to toxins at the San Francisco airport by requesting relevant information from the
employing establishment. Evidence regarding the level of appellant’s exposure at SFO is critical
to a determination regarding her claim. Therefore, once OWCP has developed the evidence as it
deems necessary, the information should be provided to Dr. Hsu for his review. After such
further development as it deems necessary, OWCP should issue an appropriate decision.

8

The Board notes that OWCP summarily dismissed appellant’s occupational disease claim alleging a new injury
as of May 10, 2007, without addressing the merits of her claim.
9

Vanessa Young, 55 ECAB 575 (2004).

10

Richard E. Simpson, 55 ECAB 490 (2004).

11

Melvin James, 55 ECAB 406 (2004).

12

Peter C. Belkind, 56 ECAB 580 (2005).

7

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2010 decision of the Office of
Workers’ Compensation Programs be set aside, and the case remanded to OWCP for further
action consistent with this decision.
Issued: February 10, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, DETROIT
PERFORMANCE CLUSTER, Detroit, MI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1504
Issued: December 20, 2012

Case Submitted on the Record

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

JURISDICTION
On July 3, 2012 appellant filed a timely appeal from the June 19, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her consequential injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury on August 13, 2011 as a consequence of her April 25, 2003 work injury.

1
2

5 U.S.C. §§ 8101-8193.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. No written confirmation was received. The Board in its
discretion has decided the appeal on the case record.

FACTUAL HISTORY
OWCP accepted that on April 25, 2003 appellant, then a 60-year-old clerk, sustained a
left knee sprain, left hip joint contracture, lumbosacral sprain and arm contusions when she fell
from a broken chair and struck the floor. She continued work in a light-duty position and retired
on December 31, 2004.3
On October 28, 2011 appellant telephoned OWCP and asserted that she sustained an
injury on August 13, 2011 as a consequence of her April 25, 2003 work injury when she fell to
the floor at home while getting out of bed.4 She stated that her left knee buckled while getting
out of bed and the fall to the floor caused her to injure her head and sustain a nose bleed.5
In a January 10, 2012 statement, appellant noted that on August 13, 2011, at 8:00 a.m.,
she was stepping out of bed and her left knee “went out” from under her. She fell to the floor.
Appellant stated that it took her a long time to get up and that she experiencing a great deal of
pain. She visited her attending physician on August 19, 2011.
Appellant submitted the findings of an October 21, 2011 magnetic resonance imaging
(MRI) scan test of her left knee. It showed a Baker’s cyst in the medial aspect of the popliteal
fossa, severe osteoarthritic change in the medial compartment of the knee and less prominent
osteoarthritic change in the lateral compartment. Appellant submitted reports dated between
December 2011 and January 2012, in which Dr. Prinz reported left knee examination findings.
She exhibited tenderness along the medial line and diagnostic testing revealed severe
degenerative disease in the medial compartment of her left knee.
In February 10, 2012 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim.
In a March 6, 2012 report, Dr. Prinz stated that appellant had exhibited medial joint
tenderness in her left knee. He noted that left knee replacement would be a treatment option of
last resort. Appellant also resubmitted reports previously of record.
On May 14, 2012 OWCP’s medical adviser reviewed the medical evidence of record and
concluded that there was insufficient evidence that appellant’s August 13, 2011 fall was a
consequence of her April 25, 2003 work injury. He made note of her preexisting degenerative
arthritis and obesity and suggested that these nonwork conditions caused her fall.
3

In June 15, 2005 and September 25, 2009 decisions, OWCP granted a schedule awards for a total left leg
impairment of 16 percent.
4

Appellant was not receiving OWCP disability compensation at this time.

5

The record contains an August 19, 2011 report in which a physician’s assistant indicated that appellant fell on
her left knee on August 13, 2011. Swelling and medial joint tenderness were observed in the knee. The findings of
August 19, 2011 x-ray testing showed left knee arthritis with severe medial compartment arthritic change, but no
acute osseous pathology or fracture. On August 26, 2011 Dr. Paul T. Prinz, an attending Board-certified orthopedic
surgeon, stated that appellant returned for a follow-up on her left knee and noted that she had tenderness in her
medial joint line and proximal tibia. On September 16, 2011 he reported similar left knee findings and noted,
“There is a history of trauma.” It should be noted that medical evidence from 2010 shows that appellant complained
of medial line tenderness in her left knee prior to August 13, 2011.

2

In a June 19, 2012 decision, OWCP denied appellant’s claim. It found that she did not
submit sufficient medical evidence to establish that she sustained an injury on August 13, 2011
as a consequence of her April 25, 2003 work injury. It determined that none of the medical
reports submitted by appellant contained an opinion that her August 13, 2011 fall at home was a
consequence of her accepted work injury.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employees own intentional conduct.6
A claimant bears the burden of proof to establish a claim for a consequential injury. As part of
this burden, he or she must present rationalized medical opinion evidence.7
ANALYSIS
OWCP accepted that on April 25, 2003 appellant sustained an upper limb contusion, left
knee sprain, lumbosacral sprain and hip joint contracture due to falling from a broken chair and
hitting the floor. In October 2011, appellant claimed that she sustained an injury on August 13,
2011, as a consequence of her April 25, 2003 work injury, when she fell to the floor at home
while getting out of bed.
The Board finds that appellant did not submit sufficient medical evidence to meet her
burden of proof to establish that she sustained an injury on August 13, 2011 as a consequence of
her April 25, 2003 work injury.
Appellant submitted several reports, dated between August 26, 2011 and early 2012, in
which Dr. Prinz, an attending Board-certified orthopedic surgeon, reported the findings on
examination of her left knee and noted that she exhibited tenderness along the medial line.
Dr. Prinz stated that diagnostic testing revealed severe degenerative disease in the medial
compartment of her left knee.
None of the medical reports of Dr. Prinz contained any opinion addressing how
appellant’s August 13, 2011 fall at home occurred as a consequence of her April 25, 2003 work
injury. Dr. Prinz did not provide any discussion of appellant’s April 25, 2003 injury or the
August 13, 2011 fall at home. He noted that appellant had severe degenerative disease in the
medial compartment of her left knee, but did not explain whether the April 25, 2003 work injury
contributed to this condition. Appellant has not submitted any medical evidence relating her
claimed August 13, 2011 consequential injury to her April 25, 2003 work injury. There is no
medical evidence showing that the April 25, 2003 fall was a natural consequence that flowed
from the April 25, 2003 injury.8
6

S.S., 59 ECAB 315 (2008).

7

Charles W. Downey, 54 ECAB 421 (2003).

8

See supra note 6. Moreover, on May 14, 2012, OWCP’s medical adviser indicated that there was no evidence
that appellant’s August 13, 2011 fall was a consequence of her April 25, 2003 work injury.

3

For these reasons, appellant did not meet her burden of proof to establish that she
sustained an injury on August 13, 2011 as a consequence of her April 25, 2003 work injury.9
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 did not meet her burden of proof to establish that she
sustained an injury on August 13, 2011 as a consequence of her April 25, 2003 work injury.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

On appeal, appellant questioned why OWCP had indicated in its June 19, 2012 decision that she sustained a left
knee injury in 1986. The Board notes that OWCP did not indicate that she sustained a left knee injury in 1986, but
rather that OWCP was referring to a Board case involving another claimant as a means of explaining Board
precedent for establishing a consequential injury.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Beverly E. Hamilton, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1553
Issued: March 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 4, 2013 appellant, through his representative, filed a timely appeal from a
November 15, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
suspending his compensation benefits.1 Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.

1

In an order dated September 13, 2013, the Board granted appellant’s request for an oral argument. Order
Granting Request for Oral Argument, Docket No. 13-1553 (issued September 13, 2013). By order dated
October 25, 2013, the Board denied his motion for a subpoena. Order Denying Motion for a Subpoena, Docket No.
13-1553 (issued October 25, 2013). On November 26 and December 12, 2013 appellant, through his representative,
withdrew his request for an oral argument and requested that the Board conduct a review of his case as submitted on
the record.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
effective November 15, 2012 due to his failure to attend a scheduled medical examination.
On appeal, appellant’s representative contends that the record does not establish that
OWCP properly selected a referee physician, thereby its obstruction notice suspending
appellant’s compensation effective November 15, 2012 is moot.
FACTUAL HISTORY
This case has previously been before the Board.3 In a June 21, 2011 decision, the Board
found an unresolved conflict in medical opinion as to whether appellant sustained back, neck and
right shoulder conditions due to the accepted factors of his federal employment and set aside an
OWCP decision dated February 22, 2010 denying his occupational disease claim. The Board
remanded the case for further development of the medical evidence. The facts and the
circumstances as set forth in the Board’s prior decision are hereby incorporated by reference.4
By letter dated December 6, 2011, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Rida N. Azer, a Board-certified orthopedic surgeon,
for an impartial medical examination. In a January 11, 2012 medical report, Dr. Azer diagnosed
soft tissue injuries and degenerative disc disease of the cervical and lumbar spines. He advised
that appellant sustained an exacerbation of his symptoms. Dr. Azer related that there was no
evidence of exacerbation in the diagnosis resulting in a change in appellant’s treatment plan. He
stated that, if the exacerbation had been severe, then surgical treatment would have been required
and no surgery had been performed by appellant’s prior physicians. Dr. Azer advised that there
was no evidence of any significant aggravation that would have changed appellant’s conservative
medical management to surgical treatment. He concluded that appellant could perform full-time
sedentary work and moderate activities with restrictions.
In a February 17, 2012 decision, OWCP denied appellant’s occupational disease claim. It
found that the weight of the medical evidence rested with Dr. Azer’s impartial medical opinion
and established that appellant did not sustain an injury caused, contributed to or aggravated by
the established employment duties.
In a May 25, 2012 decision, an OWCP hearing representative set aside the February 17,
2012 decision and remanded the case to OWCP for clarification from Dr. Azer regarding
appellant’s specific diagnosis and whether the established employment factors caused an injury
or aggravated his preexisting conditions.

3

Docket No. 10-1788 (issued June 21, 2011).

4

On July 14, 2008 appellant, then a 50-year-old safety and occupational health specialist, filed an occupational
disease claim alleging that on January 1, 2008 he became aware of his back, neck and right shoulder conditions and
realized that these conditions were caused by his employment duties. He stopped work on January 15, 2008.

2

On remand, OWCP sought clarification from Dr. Azer. In a July 16, 2012 supplemental
report, Dr. Azer advised that repetitive movements aggravated appellant’s preexisting cervical
and lumbar spine conditions. He stated that a magnetic resonance imaging (MRI) scan of the
right shoulder revealed evidence of bursitis and tendinitis with a degenerative tear in the
supraspinatus. Dr. Azer opined that appellant had an orthopedic condition that was permanently
aggravated by a preexisting condition. He could not determine if and when any conditions that
may have been caused by appellant’s employment activities on January 4, 2008 had resolved
because he first saw him on January 11, 2012. Dr. Azer listed his physical restrictions and
addressed a conservative treatment plan.
On August 24, 2012 OWCP determined that Dr. Azer’s supplemental report failed to
answer the questions asked. By letter dated September 6, 2012, it referred appellant, together
with a statement of accepted facts and the medical record, to Dr. Wylie D. Lowery, a Boardcertified orthopedic surgeon, for a second impartial medical examination on October 4, 2012 at
12:00 p.m. in Woodbridge, Virginia. Appellant was advised that, if he refused or obstructed the
examination, his compensation could be suspended under 5 U.S.C. § 8123(d). The record
contains an August 24, 2012 Form ME-M (Memorandum of Referral to Specialist) which listed
the previous physicians involved in the case and requested referral to an orthopedic specialist. A
September 5, 2012 iFECS Report: ME023 Appointment Schedule Notification referred
appellant to Dr. Lowery for an impartial medical examination. Additionally, a screenshot listed
Dr. Lowery as the selected referee physician.
In a September 19, 2012 report, Dr. Tristan Shockley, an attending Board-certified
physiatrist, noted that appellant’s scheduled appointment with Dr. Lowery was located 44 miles
from his residence. He stated that based on an accompanying functional capacity evaluation
(FCE) appellant could not tolerate being transported more than 10 miles due to the nature of his
work-related spinal injuries. Dr. Shockley further stated that, due to the nature of his injuries, a
determination regarding etiology was extremely complex. Thus, he recommended that a panel of
specialists and physicians, including a physician certified in occupational medicine, provide the
required medical evaluation. Dr. Shockley noted appellant’s desire to have a majority of the
panel be comprised of a minority race.
By letter dated October 1, 2012, OWCP advised appellant that no medical evidence,
including the referenced FCE, supported Dr. Shockley’s opinion that he could not travel to the
scheduled examination with Dr. Lowery. It stated that Dr. Shockley’s office appeared to be
greater than 10 miles from appellant’s residence which was contradictory to his
recommendations.5 OWCP further stated that Dr. Shockley did not sufficiently explain the
complexity of appellant’s medical condition as it related to a causation determination. It noted
that the selection of a referee physician was made by a strict rotational system using appropriate
medical directories and not on ethnicity. OWCP related that appellant’s alleged work-related
right shoulder, neck and back conditions were orthopedic in nature and, therefore, a panel of
physicians was not warranted at that time. A panel may be appropriate in very complex cases
which were defined as cases involving more than two conditions and complications that
5

The case record contains a MapQuest report which revealed that Dr. Shockley’s Oxon Hill, Maryland office was
18.37 to 20.66 miles from appellant’s residence in Waldorf, Maryland.

3

contributed significantly to the clinical picture. OWCP stated that, if an additional examination
by another kind of specialist was recommended or deemed necessary following Dr. Lowery’s
examination, arrangements for further examination would be made at that time.
On October 4, 2012 OWCP was advised by Dr. Lowery’s office that appellant did not
attend the scheduled examination on that date.
By letter dated October 10, 2012, OWCP proposed to suspend appellant’s compensation
benefits pursuant to section 8123(d) of FECA for failure to attend the October 4, 2012
examination with Dr. Lowery. Appellant was advised to provide a written explanation of his
reasons, with substantive corroborating evidence, within 14 days for failing to attend the
scheduled examination.
In an October 10, 2012 letter, appellant stated that Dr. Shockley would provide
clarifications and answers regarding the issues raised in OWCP’s October 1, 2012 letter. He
stated that Dr. Shockley’s Clinton, Maryland office was 10.1 miles from his home. The 0.1 mile
was statistically insignificant. Appellant contended that a medical description of his injuries was
not dissimilar to OWCP’s definition of complex cases that required a panel of physicians. He
further contended that OWCP’s determination that a panel of physicians was not necessary was
premature as his treating physicians’ diagnosed orthopedic conditions and severe chronic
depression that was aggravated by his employment injuries were well documented in the case
record. Appellant stated that a report from Dr. Hampton J. Jackson, Jr., a Board-certified
orthopedic surgeon, provided his travel restrictions.6
In an October 15, 2012 letter, appellant contended that OWCP abused its discretion in
prematurely denying his claim and by requesting the referee physician to provide supplemental
information as the physician’s report clearly documented a causal relationship between his
employment activities and the degree of injury or aggravation of preexisting conditions.
Appellant also contended that OWCP abused its discretion by failing to properly consider a
May 15, 2008 MRI scan report from Dr. Verne F. Kemerer, Jr., a Board-certified radiologist.
The MRI scan showed stenosis at the C3, C4, C5 and C6 levels bilaterally, worst at C5-6 on the
left, mild broad-based protrusions from C3-4 through C6-7 and marked biforaminal stenosis at
C4-5 through C6-7, moderate on the right at C7-T1. Appellant reiterated his contentions that a
panel of physicians was necessary to conduct his referee examination and that the medical
evidence of record supported his work-related physical and emotional conditions.
In an October 22, 2012 report, Dr. Shockley advised that the distance between his Clinton
office and appellant’s residence was 10.1 miles. He stated that the 0.1 mile was nebulous.
Dr. Shockley indicated that an accompanying FCE conducted in May 2012 provided his physical
findings to support his travel restrictions.
The May 25, 2012 FCE signed by Dr. Shockley demonstrated that appellant could work
eight hours a day with restrictions. Appellant was medically restricted from being transported by
6

In a disability certificate dated September 28, 2011, Dr. Jackson opined that appellant was totally incapacitated
through December 7, 2011. He advised that appellant could not drive or be transported more than five miles until he
was cleared by his primary physician on December 7, 2011.

4

any means, such as by taxi, etc. greater than 10 miles from his residence, except in the event of
an emergency.
Progress notes dated April 5 to November 13, 2012 from Dr. Ai Huong Phu, a physiatrist,
listed findings on physical examination and reviewed the results of a prior lumbar MRI scan.
Dr. Phu diagnosed primary displacement of lumbar intervertebral disc without myelopathy, facet
arthropathy, unspecified thoracic or lumbosacral neuritis or radiculitis, cervical spondylosis
without myelopathy, neck sprain and strain, unspecified myalgia and myositis, and rotator cuff
(capsule) sprain and strain.
On November 14, 2012 OWCP telephoned Dr. Shockley’s office to obtain verification of
his medical reports. It was informed by Stephanie Smith that appellant had never seen
Dr. Shockley and that he treated with Dr. Phu. Ms. Smith stated that he was not seen on May 25,
2012, the date of the FCE. Appellant was seen on November 13, 2012 by Dr. Phu. OWCP
spoke to Dr. Shockley who confirmed that appellant treated with Dr. George H. Drakes, a Boardcertified physiatrist, and Dr. Phu who were in his practice. Dr. Shockley went over the FCE
form with Dr. Phu and completed it with her. He signed the document because it needed to be
completed by a Board-certified physician. Dr. Shockley stated that the form was signed on
May 5, 2012 and not on May 25, 2012. He also stated that no actual FCE was conducted and
that appellant was not seen on May 5, 2012. Appellant’s last examination was on April 5, 2012.
OWCP advised Dr. Shockley that his October 22, 2012 letter and the May 25, 2012 FCE form
had no physical examination findings to support his opinion. He agreed to submit treatment
notes. OWCP advised Dr. Shockley that, if he was not the treating or examining physician, then
he should not provide an opinion in this case.
In a November 15, 2012 decision, OWCP suspended appellant’s wage-loss benefits
effective that date. It found that it directed him to report for an examination scheduled on
October 4, 2012 but he did not attend the examination or establish good cause for his failure to
attend.
LEGAL PRECEDENT
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee the Secretary
shall appoint a third physician who shall make an examination.7 It is well established that, when
a case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.8
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. The procedures
contemplate that the impartial medical specialists will be selected on a strict rotating basis in
order to negate any appearance that preferential treatment exists between OWCP and a particular
7

5 U.S.C. § 8123(a).

8

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

5

physician.9 OWCP has an obligation to verify that it selected an impartial medical specialist in a
fair and unbiased manner. It maintains records for this very purpose.10
The Medical Management Application (MMA), which replaced the Physicians Directory
System (PDS), allows users to access a database of Board-certified specialist physicians and is
used to schedule referee examination. The application contains an automatic and strict rotational
scheduling feature to provide for consistent rotation among physicians and to record the
information needed to document the selection of the physician. If an appointment cannot be
scheduled in a timely manner or cannot be scheduled for some other reason such as a conflict or
the physician is of the wrong specialty, the scheduler will update the application with an
appropriate bypass code. Upon the entering of a bypass code, the MMA will select the next
physician in the rotation.11
ANALYSIS
The Board previously remanded this case to OWCP based upon a finding that there was a
conflict in medical opinion as to whether appellant sustained back, neck and right shoulder
conditions due to the established factors of his employment. Following the Board’s remand,
OWCP selected Dr. Azer to act as the impartial medical specialist. When Dr. Azer failed to
clarify his report, however, OWCP referred appellant to Dr. Lowery for a second impartial
medical examination.12 Appellant’s representative contended that on appeal that the record does
not establish that OWCP properly selected the referee physician, and thus, its decision
suspending appellant’s compensation effective November 15, 2012 for obstructing the scheduled
examination with Dr. Lowery is moot.
The Board finds that the record does not substantiate that Dr. Lowery was properly
selected to act as the impartial medical specialist in this case.
It is well established that OWCP has an obligation to verify that it selected Dr. Lowery in
a fair and unbiased manner. It maintains records for this very purpose.13 The record contains a
September 5, 2012 Form ME023 report stating that an impartial medical examination was
scheduled with Dr. Lowery. The record also contains a screenshot that indicates the selection of
Dr. Lowery. Further, the record contains a Form ME-M which listed previous physicians
involved in the case. However, the record does not contain screen captures indicating which
physicians were bypassed in Dr. Lowery’s selection. There are also no other documents or any
other evidence to establish how the MMA system was used to select the referee physician.
9

Raymond J. Brown, 52 ECAB 192 (2001).

10

M.A., Docket No. 07-1344 (issued February 19, 2008).

11

See generally Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations,
Chapter 3.500.5 (May 2013); see also R.C., Docket No. 12-468 (issued October 15, 2012) (where the Board first
discussed the application of the MMA and found that appellant’s reasons for objecting to the list of impartial
medical specialists provided by OWCP were not valid).
12

See L.R. (E.R.), 58 ECAB 369 (2007); Charles Feldman, 28 ECAB 314 (1977).

13

M.A., supra note 10.

6

Board case law provides that a Form ME023 is not sufficient documentation that OWCP
properly followed its selection procedures.14
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.15 OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.16
The Board will remand the case to OWCP for proper selection of another impartial
medical examiner to determine whether appellant sustained back, neck and right shoulder
injuries causally related to the established employment factors. After such further development
as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

L.M., Docket No. 12-1396 (issued January 25, 2013); D.A., Docket No. 12-311 (issued July 25, 2012); C.P.,
Docket No. 10-1247 (issued September 28, 2011), petition for recon. denied, Docket No. 10-1247 (issued
May 15, 2012).
15

See D.M., Docket No. 11-1231 (issued January 25, 2012); D.L., Docket No. 11-660 (issued October 25, 2011).

16

See cases cited, supra note 14.

7

ORDER
IT IS HEREBY ORDERED THAT the November 15, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded to OWCP for further
proceedings consistent with this opinion.
Issued: March 6, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, NEWARK LIBERTY
INTERNATIONAL AIRPORT, Newark, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1470
Issued: October 8, 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 August 1, 2020 appellant, through counsel, filed a timely appeal from a February 14,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, ef fective March 6, 2019, as she no longer had
disability or residuals due to her accepted February 13, 2004 employment injury; and (2) whether
appellant has met her burden of proof to establish continuing employment-related disability or
residuals on or after March 6, 2019 causally related to her accepted February 13, 2004 employment
injury.
FACTUAL HISTORY
On February 23, 2004 appellant, then a 46-year-old transportation security screener, filed
a traumatic injury claim (Form CA-1) alleging that on February 13, 2004 she injured her back
when lifting a bag during a bag check while in the performance of duty. She stopped work on
February 13, 2004. OWCP accepted the claim for sprain of lumbosacral joint/ligament, right ankle
sprain, and right tibialis tendinitis. It paid appellant wage-loss compensation on the supplemental
compensation rolls, effective March 28, 2004, and on the periodic compensation rolls, effective
May 16, 2004.
On November 6, 2018 OWCP referred appellant along with a statement of accepted facts
(SOAF) for a second opinion evaluation with Dr. Andrew Farber, an osteopath and Board-certified
orthopedic surgeon, to determine the status of her accepted employment-related conditions.
In a November 27, 2018 report, Dr. Farber noted the SOAF, appellant’s history of injury
and medical treatment. He reported that appellant walked with a slightly antalgic gait. Appellant’s
physical examination revealed that she was mildly tender to palpation in the paraspinal region,
with 50 degrees flexion, 20 degrees extension and 20 degrees bilateral side bending, 5/5 strength
in the lower extremity with ability to heel and toe rise. Appellant had negative straight leg raising
sign bilaterally. The right ankle had mild anterolateral tenderness and swelling with full strength
and no gross instability noted. Range of motion findings were reported and no focal neurovascular
deficit was noted. Dr. Farber opined, based on his physical examination findings and the medical
records provided, that appellant did not currently have any objective findings of the accepted
conditions. He further noted that the medical evidence did not indicate that a preexisting condition
was aggravated or affected by the employment injury. Dr. Farber opined that appellant did not
have any residuals of the accepted conditions or any additional diagnosed conditions as a result of
the employment injury. He indicated that she had reached maximum medical improvement, there
was no disability as a result of the employment injury, and she could return to her full-time regular
duties with no restrictions. Dr. Farber also found that no further treatment was recommended
based on his examination.
On December 17, 2018 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits, as the evidence of record established that she no longer had employmentrelated residuals or disability due to her accepted work-related conditions. It afforded her 30 days
to submit additional evidence or argument, in writing, if she disagreed with the proposed
termination of benefits.

2

In a December 27, 2018 statement, appellant disagreed with the proposed termination. In
a January 11, 2019 statement, counsel also disagreed with the proposed termination of benefits
based on new medical evidence, which he contended supported that she continued to have residuals
of her accepted employment conditions.
In a December 11, 2018 report, Dr. Igor Stiler, a Board-certified neurologist, noted
appellant’s complaints of back pain radiating to both legs and that she stopped trigger point
injections as those did not help. Examination revealed L4-S1 tenderness, left greater than right,
with decreased range of motion of left-sided flexion and extension and positive straight leg raise
bilaterally. There was also decreased pinprick and light touch sensation involving the left leg
distally and ¼ deep tendon reflexes in the upper and lower extremities. Dr. Stiler opined that
appellant was disabled from work. He also recommended physical therapy. In a December 14,
2018 progress report, Dr. Stiler indicated that he examined appellant on December 11 and
12, 2018. He diagnosed lumbar radiculopathy and Type 2 diabetes mellitus with diabetic
neuropathy. Dr. Stiler opined, with a checkmark “yes,” that the employment injury was the
competent medical cause of the conditions and that appellant was temporary totally disabled.
In a January 30, 2019 letter, OWCP advised appellant that her physician needed to provide
medical rationale, which explained how the diagnosed lumbar radiculopathy was caused or
aggravated by the February 13, 2004 employment injury. It afforded her 30 days to provide the
requested information.
In another letter of even date, OWCP noted that Dr. Farber had indicated in his report that
appellant did not suffer from any residuals of the accepted conditions or an y additional diagnosed
conditions as a result of the employment injury. It requested that he address whether the diagnosed
lumbar radiculopathy was caused or aggravated by the February 13, 2004 employment-related
injury and, if so, whether there were any residuals or whether the condition had resolved.
In a February 7, 2019 addendum report, Dr. Farber responded that the diagnosed lumbar
radiculopathy was caused by the February 13, 2004 employment injury. He indicated that, at the
time of his examination, there were no residuals present and appellant had a negative straight leg
raising sign bilaterally with full strength in the lower extremities. Dr. Farber concluded that the
lumbar radiculopathy condition had resolved.
In a February 27, 2018 report, Dr. Stiler noted the history of appellant’s February 13, 2004
employment injury and that her electromyography (EMG) studies revealed bilateral L4, L5, and
S1 radiculopathy. He reported examination findings for both the cervical and lumbar spine, noting
tenderness bilaterally and abnormal range of motion findings for left-side extension lumbar spine
with positive bilateral straight leg raise. Dr. Stiler diagnosed chronic lumbar radiculopathy with
diabetic neuropathy. He opined that appellant was totally disabled and that she should resume
physical therapy since her symptoms worsened after she stopped physical therapy.
On February 28, 2019 OWCP expanded the acceptance of appellant’s claim to include the
additional condition of lumbar radiculopathy.

3

OWCP received January 18 and 24 and February 7, 2019 form reports from Dr. Stiler
wherein he opined that appellant was totally disabled as a result of lumbar radiculopathy and Type
2 diabetes mellitus with diabetic neuropathy.
By decision dated March 5, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective March 6, 2019. It found that the weight of the medical evidence
rested with Dr. Farber’s opinions in his reports dated November 27, 2018 and February 7, 2019
that she did not have a current disability due to the February 13, 2004 employment injury,
including a lumbar radiculopathy condition, which had resolved at the time of his examination.
OWCP received additional form reports from Dr. Stiler dated March 15, April 15, May 15,
and June 7 and 21, 2019 in which he continued to opine that appellant was totally disabled as a
result of lumbar radiculopathy and Type 2 diabetes mellitus with diabetic neuropathy.
In a June 20, 2019 report, Dr. Stiler reported examination findings of appellant’s lumbar
spine, which included abnormal range of motion findings and positive straight leg raise bilaterally
with decreased sensory examination of the distal lateral left lower extremity and deep tendon
reflects 1-2/4. He opined that her bladder issues were likely secondary to the lumbar
radiculopathy. Dr. Stiler opined that appellant was totally disabled from working.
On November 13, 2019 appellant, through counsel, requested reconsideration. In a
statement of even date, counsel argued that the medical evidence established tha t appellant
continues to establish disability due to her accepted conditions and that the class of accepted
medical conditions must be expanded.
In an October 8, 2019 report, Dr. Stiler noted that appellant was first evaluated in his office
during February 2018. He noted the history of the February 13, 2004 employment injury and her
medical course. Based on the history of injury, Dr. Stiler’s neurologic examinations performed
between February 27, 2018 and June 20, 2019, and his review of the medical records, he diagnosed
appellant with chronic lumbar radiculopathy, progressive, with L2-3 herniated disc impinging on
the left L2 nerve root and bulging disc at L5-S1, chronic cervical radiculopathy with derangement
with herniated discs at C2-3, C3-4, C3-5, C5-6, and C6-7, internal derangement of both knees with
lateral meniscal tear of the right knee, and diabetic peripheral neuropathy. He opined that she has
remained symptomatic from her diagnosed conditions since her work injury an d should be
considered totally disabled. Dr. Stiler also indicated that appellant had restrictions on lifting,
sitting, and standing in an eight-hour workday.
In a March 28, 2019 report, Dr. Sudharam Idupuganti, a Board-certified psychiatrist,
reported that appellant had been treated since November 2006 for various complaints, including
increasing back pain. He also reported that she became increasingly more depressed in the past
two years after her mother’s prolonged illness, nursing home stay and death in April 2017.
Dr. Idupuganti opined that appellant’s depression began after she was injured in her job on
February 13, 2004. Appellant developed back pain and was diagnosed as having L5 -S1 disc
prolapse and right ankle and tendon and ligament injury. Dr. Idupuganti reported her symptoms,
noting that she had a past history of panic attacks that lasted a few months in the 1980’s, which
did not require psychiatric treatment. He opined that appellant was a well-adjusted individual prior
to her employment-related fall and back and ankle injury. Dr. Idupuganti noted her mental status

4

examination and diagnosed major depression, single episode, severe with melancholia , posttraumatic stress disorder, continued panic disorder, and dysthymic disorder. He reported that
appellant’s conditions had continued since 2004 and had not significantly improved with
psychiatric treatment to date. Dr. Idupuganti, thus, opined that she was unable to work in any
gainful employment due to the intensity of her anxiety and depression as well as her back and
ankle pain, which were a direct consequence of her February 13, 2004 employment injury.
By decision dated February 14, 2020, OWCP denied modification of its March 5, 2019
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.3 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment. 4 OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment. 7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective March 6, 2019, as she no longer had disability or
residuals due to her accepted February 13, 2004 employment injury.
In his November 27, 2018 report, Dr. Farber described the February 13, 2004 employment
injury and noted that appellant’s claim was accepted for sprain of lumbosacral joint/ligament, right
ankle sprain, and right tibialis tendinitis. He also noted that the diagnostic testing showed lumbar
radiculopathy. Dr. Farber conducted a physical examination and related appellant’s examination
findings. He opined, based on his physical examination findings and the medical records provided,
that she did not currently have any objective findings of the accepted conditions. Dr. Farber also
indicated that the medical evidence of record did not indicate that a preexisting condition was
3

C.C., Docket No. 19-1062 (issued February 5, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
4

See T.M., Docket No. 19-1058 (issued March 30, 2021); G.T., Docket No. 18-01302 (issued October 22, 2019);
A.G., Docket No. 18-0749 (issued November 7, 2018); Elsie L. Price, 54 ECAB 734 (2003).
5

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

6

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

See T.M., supra note 4; A.M., Docket No. 18-1243 (issued October 7, 2019); R.P., Docket No. 17-1133 (issued
January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

5

aggravated or affected by the employment injury. Thus, he opined that appellant did not have any
residuals of the accepted conditions or any additional diagnosed conditions as a result of the
employment injury, there was no disability as a result of the employment injury, and she was able
to return to her full-time regular duties with no restrictions. In his February 7, 2019 addendum
report, Dr. Farber indicated that her diagnosed lumbar radiculopathy was caused by the
February 13, 2004 employment injury. He opined that the lumbar radiculopathy had resolved
without residuals since, at the time of his examination, appellant had a negative straight leg raising
sign bilaterally with full strength in the lower extremities.
The Board finds that OWCP properly determined that Dr. Farber’s opinion constitutes the
weight of the medical opinion evidence. Dr. Farber based his opinion on a proper factual and
medical history and physical examination findings and provided medical rationale for his opinion
that appellant did not have a current residual injury. He noted that examination findings were
normal with objective findings to indicate any residuals of the accepted conditions. The Board
finds that Dr. Farber provided a well-rationalized opinion based on medical evidence regarding
appellant’s February 13, 2004 employment injury residuals and disability. Accordingly, OWCP
properly relied on his second opinion reports in terminating her wage-loss compensation and
medical benefits for the February 13, 2004 employment injury.8
Following its December 17, 2018 notice of proposed termination, OWCP received a
February 27 and December 11 and 14, 2018 reports, and January 18 and 24 and February 7, 2019
form reports from Dr. Stiler, who opined that appellant was totally disabled as a result of lumbar
radiculopathy and Type 2 diabetes mellitus with diabetic neuropathy. In his February 27, 2018
report, Dr. Stiler noted the history of the February 13, 2004 employment injury and that EMG
diagnostic testing revealed bilateral L4, L5, and S1 radiculopathy. He conducted a physical
examination of appellant’s cervical and lumbar spine and noted examination findings. Dr. Stiler
diagnosed chronic lumbar radiculopathy with diabetic neuropathy and opined that she was totally
disabled. However, he did not address in his December 2018 and 2019 reports whether appellant
had continued residuals of her employment-related lumbar radiculopathy, based upon objective
medical findings. Dr. Stiller did not provide a probative medical opinion, based on objective
medical findings that she was disabled or currently required medical treatment due to an
employment-related condition. 9 The Board finds, therefore, that the remaining contemporaneous
medical evidence is insufficient to overcome the weight of medical evidence given to Dr. Farber’s
second opinion reports in terminating appellant’s wage-loss compensation and medical benefits,
effective March 6, 2019, for the February 13, 2004 employment injury.10
LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated appellant’s wage-loss and medical benefits, the burden
shifted to her to establish continuing disability or residuals, after that date, causally related to her
8

See C.C., supra note 3; S.M., Docket No. 18-0673 (issued January 25, 2019); see also A.F., Docket No. 16-0393
(issued June 24, 2016).
9

See A.M., supra note 7; see E.C., Docket No. 17-1645 (issued June 11, 2018).

10

See N.G., Docket No. 18-1340 (issued March 6, 2019); see also J.P., Docket No. 16-1103 (issued
November 25, 2016).

6

accepted injury. 11 To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such a causal
relationship.12 Causal relationship is a medical issue and the medical evidence required to establish
a causal relationship is rationalized medical evidence. 13
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.14
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish continuing
employment-related disability or residuals on or after March 6, 2019 causally related to her
accepted February 13, 2004 employment injury.
Following the termination of her wage-loss compensation and medical benefits, effective
March 6, 2019, appellant submitted additional reports from Dr. Stiler. In his form reports dated
March 15, April 15, May 15, and June 7 and 21, 2019, Dr. Stiler again concluded that she was
totally disabled as a result of lumbar radiculopathy and Type 2 diabetes mellitus with diabetic
neuropathy. While he continued to provide an opinion that appellant was unable to return to work,
his opinion was merely conclusory in nature.15 Dr. Stiler did not provide medical rationale
explaining the objective findings substantiating his diagnosis and how the diagnosed condition
was disabling. A medical opinion not fortified by medical rationale is of diminished probative
value.16 These reports, therefore, are of diminished probative value to establish appellant’s
entitlement to continued wage-loss compensation and medical benefits. 17
In his June 20, 2019 report, Dr. Stiler reported abnormal examination physical examination
findings regarding appellant’s lumbar spine. He opined that her bladder issues were likely
secondary to the lumbar radiculopathy and that she was totally disabled. Again, Dr. Stiler failed

11

E.J., Docket No. 20-0013 (issued November 19, 2020); B.A., Docket No. 17-1471 (issued July 27, 2018); Manuel
Gill, 52 ECAB 282 (2001).
12

C.L., Docket No. 18-1379 (issued February 3, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

13

See C.S., Docket No. 18-0952 (issued October 23, 2018); Paul Foster, 56 ECAB 208 (2004); Jacqueline M.
Nixon-Steward, 52 ECAB 140 (2000).
14

See S.L., Docket No. 19-0603 (issued January 28, 2020); T.E., Docket No. 18-1595 (issued March 13, 2019);
T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).
15

See A.T., Docket No. 20-0334 (issued October 8, 2020).

16

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

17

See R.R., Docket No. 19-0173 (issued May 2, 2019); O.W., Docket No. 17-1881 (issued May 1, 2018).

7

to address the relevant issue of whether appellant had continued residuals of her employmentrelated lumbar radiculopathy, based upon objective findings.18
In his October 8, 2019 report, Dr. Stiler noted the history of the February 13, 2004
employment injury and appellant’s medical course, including his neurologic examinations
performed between February 27, 2018 and June 20, 2019, and his review of the medical records.
He diagnosed chronic lumbar radiculopathy, progressive, with L2-3 herniated disc impinging on
the left L2 nerve root and bulging disc at L5-S1, chronic cervical radiculopathy with derangement
with herniated discs at C2-3, C3-4, C3-5, C5-6, and C6-7, internal derangement of both knees with
lateral meniscal tear of the right knee, and diabetic peripheral neuropathy. Dr. Stiler opined that
appellant has remained symptomatic from her diagnosed conditions since her work injury and
should be considered totally disabled. He also provided work restrictions on lifting, sitting, and
standing in an eight-hour work day. Besides providing conflicting opinions on whether appellant
was totally or partially disabled, Dr. Stiler again did not relate current objective diagnostic
findings. He also diagnosed her with cervical and bilateral knee conditions and diabetic peripheral
neuropathy which have not been accepted under this claim, but he did not provide an opinion as
to whether the reported neck and bilateral knee conditions and diabetic peripheral neuropathy are
causally related to the accepted February 13, 2004 employment injury. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 19 Thus, Dr. Stiler’s reports are
insufficient to cause a conflict of medical opinion with Dr. Farber’s opinion.20
Appellant also submitted a March 28, 2019 report from Dr. Idupuganti. Dr. Idupuganti
began treating her two years after the February 13, 2004 employment injury. He opined that
appellant’s depression began after the February 13, 2004 employment injury, noting that she
developed back pain and was diagnosed as having L5-S1 disc prolapse and right ankle and tendon
and ligament injury, and that she was a well-adjusted individual prior to her employment-related
fall and back and ankle injury. Dr. Idupuganti diagnosed major depression, single episode, severe
with melancholia, post-traumatic stress disorder, and continued panic disorder and dysthymic
disorder. He opined that the intensity of appellant’s anxiety and depression, as well as her back
and ankle pain, are a direct consequence of her February 13, 2004 employment injury and rendered
her totally disabled from any gainful employment. OWCP has not accepted anxiety and depression
conditions in this claim. Besides indicating that appellant was a well-adjusted individual prior to
the employment-related injury, Dr. Idupuganti has not offered any medical rationale which
explained how or why her emotional conditions and disability arose due to her employment
injury.21

18

Id.

19

A.M., Docket No. 18-0562 (issued January 23, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018); Leslie C. Moore, 52 ECAB 132 (2000).
20

See V.P., Docket No., 19-0645 (issued February 22, 2021).

21

See supra note 16.

8

The Board thus finds that appellant has not met her burden of proof to establish continuing
employment-related disability or residuals, on or after March 6, 2019, due to the accepted
employment injury.
On appeal counsel asserts that the termination is contrary to the medical evidence on file
and the law. As explained above, OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits. Additionally appellant has not met her burden of proof
to establish continuing employment-related disability or residuals on or after March 6, 2019 due
to the accepted employment injury.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective March 6, 2019, as she no longer had disability or
residuals due to her accepted February 13, 2004 employment injury. The Board further finds that
she has not met her burden of proof to establish continuing employment-related disability or
residuals on or after March 6, 2019 causally related to her accepted February 13, 2004 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, SCRANTON POST
OFFICE, Scranton, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2443
Issued: March 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 27, 2007 appellant, through his attorney, filed an appeal from January 23
and March 15, 2007 merit decisions of the Office of Workers’ Compensation Programs and an
August 31, 2007 hearing representative’s decision denying his claim for disability compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that he was disabled from July 29, 2006
through April 22, 2007 due to his accepted employment injury.
FACTUAL HISTORY
On May 8, 2002 appellant, then a 41-year-old letter carrier, filed an occupational disease
claim alleging that he sustained a ruptured disc in his neck due to factors of his federal
employment. He became aware of his condition on October 2, 2001. The Office accepted the

claim, assigned file number 032008039, for neck sprain and displacement of a cervical
intervertebral disc.1 The Office authorized an anterior cervical fusion at C4-5 and C5-6.
Appellant returned to work with restrictions in July 2003. On June 23, 2006 he filed a
recurrence of disability claim on June 15, 2006 causally related to an October 2001 injury.
On July 25, 2006 Dr. Kenneth W. Gentilezza, a Board-certified physiatrist, evaluated
appellant for recurrent right arm and neck pain. He noted that a June 20, 2006 electromyogram
(EMG) and nerve condition study (NCS) revealed right-sided active nerve root irritation and
magnetic resonance imaging (MRI) scan studies showed progressive abnormalities.
Dr. Gentilezza listed findings of a mildly positive Spurling’s maneuver and restricted cervical
movement. He related, “At this point it appears that [appellant] is having [a] recurrence of his
previous neck injury which at the very least seems to have affected the C5-6 level and his
problem with the C4-5 level in the past, but his examination, MRI scan findings, and EMG/NCS
seems to indicate more of a C5-6 issue.” Dr. Gentilezza opined that appellant could continue
working with restrictions and referred him to Dr. Walter C. Peppelman, an osteopath, for a
surgical consultation. In progress reports dated August and September 2006, Dr. Gentilezza
found that appellant was totally disabled from employment.
In a report dated August 1, 2006, Dr. Samuel A. Valenti, a Board-certified internist,
found intact sensation of the right upper extremity, decreased grip strength and mildly restricted
cervical range of motion. He diagnosed right upper extremity paresthesia and increased cervical
pain. Dr. Valenti opined that appellant should remain off work for the next two days.
On August 3, 2006 Dr. Peppelman discussed appellant’s complaints of increased right
shoulder pain, stabbing pain and weakness of the right arm and dysesthetic right hand
movements. He noted that an MRI scan study revealed a disc bulge at C6-7 and an EMG
revealed chronic C5-6 radiculopathy with mild acute nerve irritation. Dr. Peppelman was unable
to diagnose the source of appellant’s complaints and recommended conservative treatment.2
On October 6, 2006 the Office accepted that appellant sustained a recurrence of disability
on June 15, 2006.3 Appellant filed a claim for compensation beginning October 28, 2006.
An EMG obtained on October 9, 2006 revealed acute brachial plexopathy of the lower
trunk of the right brachial plexus with “associated denervation and motor and sensory axon loss.”
In a report dated November 28, 2006, Dr. Gentilezza diagnosed C5-7 radiculopathy on the right
side and brachial plexopathy on the right consistent with Parsonage Turner syndrome. He
indicated that he was unfamiliar with appellant’s previous work-related condition as he had only
treated him since July 2006. Dr. Gentilezza stated, “It [is] my opinion with a reasonable degree
1

Appellant has a claim accepted for a right shoulder condition in file number 03208732.

2

On August 8, 2006 Dr. Gentilezza recommended epidural steroid injections at C5-6.

3

On October 3, 2006 an Office medical adviser determined that the Office should not approve physical therapy
for the right shoulder as appellant’s pain may be due to his cervical spine condition. He noted that an MRI scan
obtained April 7, 2004 revealed a stable fusion from C4 to C6 but a disc protrusion at C6-7.

2

of medical certainty that there has not been an aggravation of that previous condition but a
recurrence of that previous condition for the most part.” He asserted that the etiology of the
brachial plexopathy and its relationship to appellant’s work injury was unclear. Dr. Gentilezza
found that appellant was currently unemployable due to his right upper extremity brachial
plexopathy.4
By decision dated January 23, 2007, the Office denied appellant’s claim for
compensation from October 6 to November 24, 2006.
In a January 16, 2007 report, received by the Office on January 29, 2007, Dr. Gentilezza
noted that the Office had accepted an anterior C4-5 and C5-6 cervical fusion as related to the
employment injury. He was uncertain how appellant’s Parsonage Turner syndrome was related
to the 2001 work injury and noted that the diagnosis was not consistent with a fusion.
By decision dated March 15, 2007, the Office denied appellant’s claim for compensation
from December 9, 2006 to February 2, 2007.
On March 25, 2007 appellant, through counsel, requested an oral hearing. He submitted
a March 6, 2007 report from Dr. Gentilezza who opined that appellant’s condition was due to his
accepted employment injury and constituted “a recurrence of that work injury and not a new
event or work accident.” Dr. Gentilezza based his conclusion on clinical findings and symptoms.
On April 17, 2007 Dr. Gentilezza noted that appellant continued to have left arm
symptoms such that he was only capable of sedentary activity. He indicated that his right arm
weakness had not progressed and that he was interested in resuming sedentary employment.
Dr. Gentilezza reviewed the medical history and related that appellant’s neck pain and arm
symptoms never fully resolved following his cervical fusion at C4-5 and C5-6 in 2003. When
appellant returned to work he attempted to carry his mailbag on his right shoulder but
experienced radiating numbness and paresthesias through the right arm. Dr. Gentilezza noted
that one EMG showed radiculopathy at C5-6 and another obtained a short time later revealed a
brachial plexopathy at C5-6. He found that, based on appellant’s history, repeated clinical
examinations and MRI scan studies, he sustained a brachial plexus lesion at the time of his
original work injury. Dr. Gentilezza opined that his brachial plexus lesion never resolved and
that his wearing a mail sack on his right shoulder caused increased symptoms. He asserted:
“Therefore, it makes most sense to me that as a result of his ongoing continuation
of work as a mail carrier he has had a slow yet progressive recurrence of his
October 2001 work injury that subsequently required surgery in 2003 at C4-5 and
C5-6, but additionally likely had a brachial plexus lesion dating back to the 2001
injury as well that never improved and was only discovered as time [went] on.
Thus, it is my opinion, with a reasonable degree of medical certainty that at this
point in time [appellant’s] impairment and disability is directly related to his 2001
work injury and seems to be most consistent with a recurrence of that injury.…”
4

In a progress report dated November 28, 2006, Dr. Avner Griver, a Board-certified physiatrist, diagnosed right
upper extremity pain and right hand pain with nerve intervention. He recommended pain medication.

3

Dr. Gentilezza diagnosed right arm and neck radiculopathy and right brachial plexopathy
due to appellant’s accepted employment injury. He noted that there may have been an
aggravation of his condition due to his work as a mail handler subsequent to his surgery.
Dr. Gentilezza released appellant for a trial of sedentary employment.
By decision dated August 31, 2007, the Office hearing representative affirmed the
January 23 and March 15, 2007 decisions. She noted that appellant stopped work on July 29,
2006 and returned to work on April 23, 2007. Appellant used sick and annual leave until
October 16, 2006. The hearing representative found that the medical evidence did not support a
recurrence of disability as Dr. Gentilezza opined that appellant’s condition may be due to work
duties performed following his cervical fusion.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act5 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.6 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.7 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.8 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the claimant,12 must be one of reasonable medical certainty13
5

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

6

Sean O’Connell, 56 ECAB 195 (2004).

7

Paul E. Thams, 56 ECAB 503 (2005).

8

Id.

9

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

John J. Montoya, 54 ECAB 306 (2003).

11

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

12

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

13

John W. Montoya, supra note 10.

4

explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.14
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence to see that justice is done.15
ANALYSIS
The Office accepted that appellant sustained neck sprain and displacement of a cervical
intervertebral disc due to factors of his federal employment. He underwent an anterior cervical
fusion at C4-5 and C5-6. Appellant returned to work with restrictions in July 2003. He filed a
claim for compensation for total disability beginning October 6, 2006. At the hearing, appellant
specified that he stopped work on July 29, 2006.
In a report dated July 25, 2006, Dr. Gentilezza noted that diagnostic tests showed active
nerve root irritation on the right side and MRI scan studies showed progressive abnormalities.
He diagnosed a recurrence of appellant’s prior neck injury and opined that he could continue
working with restrictions. In progress reports dated August and September 2006, Dr. Gentilezza
found that appellant was totally disabled from employment.
In a report dated November 28, 2006, Dr. Gentilezza diagnosed C5-7 radiculopathy on
the right side and brachial plexopathy on the right consistent with Parsonage Turner syndrome.
He asserted that the etiology of the brachial plexopathy was uncertain. Dr. Gentilezza found that
appellant was disabled from employment. On March 6, 2007 he attributed appellant’s condition
to his accepted employment injury rather than a “new event or work accident.”
On April 17, 2007 Dr. Gentilezza opined that, based on appellant’s history, repeated
clinical examinations and MRI scan studies, he sustained a brachial plexus lesion at the time of
his original work injury. He opined that the brachial plexus lesion did not resolve and that he
sustained increased symptoms due to carrying his mail sack. Dr. Gentilezza diagnosed right arm
and neck radiculopathy and right brachial plexopathy due to his accepted employment injury.
He concluded that appellant’s neck and right arm symptoms were a recurrence of his
employment injury and the result of cumulative trauma from his employment duties.
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.16 The Board
finds that, although the reports of Dr. Gentilezza are insufficiently rationalized to meet
appellant’s burden of proof to establish that he sustained brachial plexopathy due to the accepted
work factors, they stand uncontroverted in the record and raise an inference of causal
14

Judy C. Rogers, 54 ECAB 693 (2003).

15

Jimmy A. Hammons, 51 ECAB 219 (1999).

16

Phillip L. Barnes, 55 ECAB 426 (2004).

5

relationship sufficient to require further development by the Office.17 Accordingly, the Board
finds that the case must be remanded to the Office. On remand, the Office should further
develop the medical record to determine whether appellant’s brachial plexopathy was related to
his employment and, if so, any periods of disability. Following this and such further
development as the Office deems necessary, it 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 decisions of the Office of Workers’
Compensation Programs dated August 31, March 15 and January 23, 2007 are set aside and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: March 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

17

Id.

6