United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF HUMAN RESOURCES,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-1205
Issued: September 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 30, 2014 appellant filed a timely appeal from the February 6, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s emotional condition on the
grounds that it was untimely filed.
FACTUAL HISTORY
On April 26, 2013 appellant, then a 63-year-old former workers’ compensation program
manager and acting chief of human resources, filed an occupational disease claim (Form CA-2)
alleging that he sustained dystonia, torticollis, neck spasms and tilting of his neck due to
1

5 U.S.C. §§ 8101-8193.

exposure to a hostile work environment throughout his time at the employing establishment. He
indicated that he first became aware of these conditions in the 1990s and that he first realized on
September 1, 2012 that they were caused or aggravated by his employment. Regarding the
relationship of these claimed conditions to his employment, appellant stated that he recently
learned through research that stress from his hostile work environment aggravated his medical
condition and led to his retirement in 2001. He indicated that he also was recently informed by a
friend that the hostile work environment aggravated his medical condition and caused severe
pain in the side of his neck. On the CA-2 form, an employing establishment official confirmed
that appellant had retired in 2001.2
In a May 10, 2013 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of his claim.
In a May 16, 2013 statement, appellant discussed various incidents and conditions at
work, which he alleged aggravated his cervical dystonia, including harassment by a supervisor,
Valerie Grasso.3 He noted that Dr. N.K. Nikhar, an attending Board-certified neurologist,
recommended that “my medical condition was incurable and the enormous stress that I was
under at the Library of Congress supported my permanent disability and his rationale (sic) the
severe stress continued (sic) worsen my condition and aggravated my pre-existing condition.”
Appellant indicated that he provided numerous medical records regarding his neck problems to
the health services office of the employing establishment.
In a June 18, 2013 decision, OWCP denied appellant’s claim on the grounds that it was
untimely filed. It found that he was aware or should have been aware by the time he retired in
2001 of the possible relationship between his cervical dystonia condition and work factors but
that he did not file his claim until April 26, 2013. OWCP further found that appellant’s
supervisor did not have actual knowledge of a work injury within 30 days of appellant’s last
exposure to potential work factors in 2001.
Appellant requested a telephone hearing with an OWCP hearing representative. During
the November 21, 2013 hearing, he testified that he had experienced dystonia since the 1990s
and indicated that the employing establishment attempted to accommodate him by allowing him
to work in different positions. Appellant stated that his neck condition deteriorated significantly
in early 2000. He discussed the medical treatment he received, including the treatment he
received from Dr. Nikhar beginning in 2001. Appellant stated that Dr. Nikhar made some
recommendations regarding ways to reduce stress in his work situation. He discussed incidents
and conditions at work which he believed aggravated his medical condition. Appellant alleged
that he was harassed by Ms. Grasso, the workers’ compensation program manager, who
supervised him and stated that he was moved into her position after she was transferred. He
asserted that his condition and the number of medications that he was taking caused his inability

2

The precise date of appellant’s retirement in 2001 remains unclear from the record.

3

It appears from the record that Ms. Grasso was appellant’s immediate supervisor and that Dr. Sandra Charles
was a higher level superior.

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to function and resulted in his inability to recognize the requirement to file a compensation claim
at the time of his 2001 retirement.4
Appellant submitted a May 18, 2001 report in which Dr. Nikhar stated that he had been
treating appellant for spasmodic torticollis (cervical dystonia), a condition which was associated
with involuntary and abnormal head turn and head position and at times intense pain due to
muscle spasms.5 Dr. Nikhar indicated that appellant’s condition had been steadily progressing
and noted that photographs from as far back as January 2, 2000 revealed a prominent head tilt.
He noted that appellant had recently been injected with a botulinum toxin for the cervical
dystonia which offered some relief but noted that the relief from the injection was “overwhelmed
by the excessive workload in his work scenario.” Dr. Nikhar stated:
“This condition will persist regardless of the activities on and off the job.
However, stress and prolonged positioning in one position is likely to aggravate
the symptoms of the dystonia and, in particular, the pain. Periodic intermittent
rest in a stress free environment is the most likely situation to offer relief to
[appellant].”
***
“The emphasis is to recognize the symptoms and the difficulties that [appellant]
faces in the current work environment. Anything that may be done to decrease
the level of stress which is clearly an exacerbating factor is to be encouraged. In
this context, if the work environment is stressful, both psychologically and
physically demanding, then this may prove deleterious to the patient’s ability to
cope with symptoms.”
In a June 1, 2001 report, Dr. Nikhar stated that he was providing an addendum to his
May 18, 2001 report and noted:
“It is my opinion that [appellant] has a disorder of involuntary movement for
which there in presently no cure, only treatment. It is a permanent condition,
which is likely to be exacerbated by prolonged work situations. I would support
[appellant’s] application for permanent disability and would concur that he would
be unable to perform his assigned duties as a workers’ compensation program
manager.”

4

Appellant later submitted a copy of the hearing transcript in which he added notations to his testimony. He
filled in a number of short gaps which appeared in the sentences contained in the transcript.
5

In a March 13, 2001 report, Dr. Nikhar detailed the first time he treated appellant’s cervical dystonia condition.
Appellant reported that he experienced pain in his neck since 1997 with a sudden increase in symptoms in
December 2000. The record was also supplemented to include documents from the employing establishment,
including several documents from the early to mid-1990s concerning fitness-for-duty examinations conducted
during his employment. None of the documents show that appellant’s immediate supervisor had actual knowledge
of his possible work-related neck condition.

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In a February 6, 2014 decision, the hearing representative affirmed OWCP’s June 18,
2013 decision noting that appellant’s emotional condition claim was properly denied on the
grounds that it was untimely filed. She found that he was aware or should have been aware
around the time of Dr. Nikhar’s May 18, 2001 examination of the possible relationship between
his cervical dystonia condition and work factors but that he did not file his claim until
April 26, 2013. The hearing representative also found that appellant’s supervisor did not have
actual knowledge of a work injury within 30 days of appellant’s last exposure to potential work
factors in 2001. Appellant did not present evidence that there were compelling circumstances,
such as his medical condition or use of medication, which prevented him from filing his claim in
a timely manner.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.6 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”7
Section 8119 of FECA provides that a notice of injury or death shall be given within
30 days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.8 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.9
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. Such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
6

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

7

5 U.S.C. § 8122(a).

8

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

9

Laura L. Harrison, 52 ECAB 515 (2001).

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the ultimate result of such affect would be temporary or permanent.10 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.11 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.12 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.13
ANALYSIS
On April 26, 2013 appellant filed an occupational disease claim alleging that he sustained
dystonia, torticollis, neck spasms and tilting of his neck due to exposure to a hostile work
environment throughout his time at the employing establishment which ended when he retired in
2001.14 He indicated that he first became aware of these conditions in the 1990s and that he first
realized on September 1, 2012 that they were caused or aggravated by his employment.
The evidence establishes that appellant was aware or by the exercise of reasonable
diligence should have been aware, of the causal relationship between his employment and the
compensable disability as early as May 2001. This awareness is shown, in part, by a May 18,
2001 report in which Dr. Nikhar, an attending Board-certified neurologist, stated that he had
been treating appellant for spasmodic torticollis (cervical dystonia), a condition which was
associated with involuntary and abnormal head turn and head position and at times intense pain
due to muscle spasms. Dr. Nikhar noted that it was important for appellant to recognize that
“[a]nything that may be done to decrease the level of stress which is clearly an exacerbating
factor is to be encouraged. In this context, if the work environment is stressful, both
psychologically and physically demanding, then this may prove deleterious to [appellant’s]
ability to cope with symptoms.” In a June 1, 2001 report, Dr. Nikhar noted, “It is my opinion
that [appellant] has a disorder of involuntary movement for which there in presently no cure,
only treatment. It is a permanent condition, which is likely to be exacerbated by prolonged work
situations.”
Moreover, appellant’s own comments support that he knew in May 2001 of the possible
relationship between alleged work factors and his neck condition. In a statement submitted in
support of his claim, he discussed various incidents and conditions at work which he felt
aggravated his cervical dystonia, including harassment by his immediate supervisor, Ms. Grasso.
Appellant noted that the recommendation of Dr. Nikhar was that “my medical condition was
10

Larry E. Young, supra note 8.

11

Id.

12

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

13

Debra Young Bruce, 52 ECAB 315 (2001).

14

The precise date of appellant’s retirement in 2001 remains unclear from the record.

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incurable and the enormous stress that I was under at the Library of Congress supported my
permanent disability and his rationale (sic) the severe stress continued (sic) worsen my condition
and aggravated my pre-existing condition.” He made similar comments in his November 2013
hearing testimony regarding Dr. Nikhar’s linking of work stress with his neck condition.
Appellant’s explicit linking of a claimed hostile work environment with his development of
cervical dystonia and related conditions shows that he knew as early as May 2001 of the possible
relationship between these employment incidents and his claimed medical conditions.
Appellant’s last possible exposure to the implicated employment factors, i.e., the alleged
hostile work environment, occurred no later than the time of his retirement in 2001. As noted
above, if an employee continues to be exposed to injurious working conditions after such
awareness, the time limitation begins to run on the last date of this exposure. Therefore, the time
limitation in appellant’s case began to run no later than the time of his retirement in 2001.15
Since appellant did not file a claim until April 26, 2013, his claim was not filed within the
three-year period of limitation. He asserted that his condition and the number of medications he
was taking caused his inability to function and resulted in his inability to recognize the timeliness
requirements for filing a compensation claim, but he did not submit sufficient evidence to show
that such compelling circumstances that prevented him from filing his claim in a timely manner.
On appeal, appellant alleged that the employing establishment had knowledge of his
claimed injury due to his visits to the health services office of the employing establishment in
2000 and 2001. His claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given to his immediate superior within 30 days as
specified in section 8119. The record includes documents from the employing establishment,
including several documents from the early to mid-1990s concerning fitness-for-duty
examinations conducted during appellant’s employment. None of the documents show that his
immediate supervisor had actual knowledge of his possible work-related neck condition. The
evidence of record does not support a finding that appellant has satisfied either of the
above-noted notice requirements.16
CONCLUSION
The Board finds that OWCP properly denied appellant’s emotional condition on the
grounds that it was untimely filed.

15

If appellant continued to be exposed to injurious working conditions after the date he became aware of a
possible employment-related cause of his claimed emotional condition, i.e., May 2001 in the present case, the time
limitation would begin to run on the last date of this exposure. It appears that he continued to work for the
employing establishment after May 2001 and retired at some point thereafter in 2001. See supra note 11.
16

There is no indication in the record that appellant provided a statement to his immediate superior such that he
satisfied the provisions of sections 8119 and 8122(a) of FECA. See supra notes 8 and 9.

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ORDER
IT IS HEREBY ORDERED THAT the February 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., widow of K.W., Appellant

and
DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT,
New York, NY, Employer
__________________________________________

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

Docket No. 19-0569
Issued: August 16, 2019

Case Submitted on the Record

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

JURISDICTION
On January 16, 2019 appellant, through counsel, filed a timely appeal from a December 18,
2018 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the employee’s
death was causally related to a June 13, 1994 employment injury.
FACTUAL HISTORY
On June 22, 1994 the employee, then a 63-year-old bond sales promotion representative,
filed a traumatic injury claim (Form CA-1) alleging that on June 13, 1994 he tore his right Achilles
tendon when he stepped and landed awkwardly off a high concrete slab while in the performance
of duty. OWCP accepted the employee’s claim for ruptured Achilles tendon of right foot and, on
December 12, 1994, authorized debridement and right Achilles tendon repair surgery.
In a report dated October 20, 1998, Dr. Jacob Bornstein, a Board-certified cardiologist,
indicated that the employee had a heart condition prior to his Achilles tendon surgery on
December 28, 1994. He related that immediately after the December 28, 1994 surgery the
employee went into cardiac arrest, and underwent an emergency cardiac catheterization. On
January 5, 1995 the employee underwent a triple bypass operation, however, the procedure was
not successful, and he subsequently developed atrial arrhythmia. Dr. Bornstein noted that,
following the January 5, 1995 operation, the employee had been readmitted to the hospital for
cardiac-related problems multiple times from February 1996 through July 1998. He opined that,
but for the surgery to his Achilles tendon, the employee would not have suffered an acute
myocardial infarction on December 28, 1994.
In July 1998 the employee underwent cardiac catheterization for recurrent angina
symptoms, and in November 1998, OWCP expanded acceptance of the claim to include acute
myocardial infarction. He remained on the periodic compensation rolls for total disability until
his death on February 24, 2016.
In a letter dated March 7, 2016, OWCP informed appellant, the employee’s widow, that
she could request survivor benefits if she believed her husband died from an employment-related
condition. It provided a questionnaire for her completion.
In a letter dated March 15, 2016, appellant indicated that the employee died from
congestive heart failure as a result of an employment-related injury, and requested payment of
survivor benefits. She submitted a death certificate along with her request, however, the death
certificate did not indicate a cause of death.
In a development letter dated April 1, 2016, OWCP informed appellant of the deficiencies
of her claim and provided an opportunity to submit additional evidence. It afforded her 30 days
to submit the necessary evidence.
On April 25, 2016 appellant filed a claim for survivor’s benefits (Form CA-5), alleging
that the employee had passed away on February 24, 2016 from congestive heart failure causally
related to the accepted June 13, 1994 employment injury.

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In a development letter dated June 22, 2016, OWCP informed appellant of the factual and
medical evidence needed to establish her claim. It afforded her 30 days to submit the necessary
evidence.
In an attending physician’s report (Form CA-5) dated July 7, 2016, Dr. David Seinfeld, a
Board-certified cardiologist, indicated the direct cause of the employee’s death as multi-system
failure secondary to sepsis. He noted contributory causes of death including renal failure, left
ventricular pump failure, respiratory failure, and prostate cancer. Dr. Seinfeld related employee’s
history of myocardial infarction following an employment-related surgery in 1994, coronary artery
disease, congestive heart failure, and atrial fibrillation, and opined that these underlying cardiac
diseases were a contributing factor in his death.
On September 1, 2016 OWCP referred appellant’s case along with a statement of accepted
facts (SOAF) and medical record to the district medical adviser (DMA) to determine whether the
employee’s death was causally related to the accepted June 13, 1994 employment injury. In a
report dated September 15, 2016, Dr. Amanda C. Trimpey, Board-certified in occupational
medicine and serving as the DMA, reviewed the SOAF and medical history, and indicated that the
employee’s direct cause of death was septic shock. She opined that there was no medical evidence
of record that established that the accepted myocardial infarction or ruptured Achilles tendon
caused the employee’s death.
On September 23, 2016 OWCP referred the case, along with a SOAF and medical record,
to a second opinion examiner for review. In the referral letter, it defined types of causal
relationship as direct causation, aggravation, acceleration, and precipitation. In a report dated
October 17, 2016, Dr. Paul Wein, a Board-certified cardiologist serving as a second opinion
examiner, reviewed the SOAF and medical history, and opined that the employee had longstanding progressive cardiovascular disease, as well as a number of other medical problems that
he was being treated for prior to his death. Dr. Wein related that the employee’s preexisting
cardiovascular disease was aggravated by the slip and fall when he suffered the myocardial
infraction. He agreed with Dr. Seinfeld’s July 6, 2016 medical opinion and again noted that the
employee’s heart disease was aggravated by the slip and fall and surgery in 1994. Dr. Wein
thereafter indicated that the employee had multiple medical conditions at the time of his death. He
concluded, “I do not see a clear causal relationship between the [employee’s] demise” and the
accepted June 13, 1994 employment injury.
By decision dated December 5, 2016, OWCP denied appellant’s claim for survivor’s
benefits, finding that she had not submitted medical evidence sufficient to establish that an
employment-related condition caused or contributed to the employee’s death on
February 24, 2016.
On May 2, 2017 appellant requested reconsideration of OWCP’s December 5, 2016
decision. She submitted additional evidence with her request.
In a letter dated April 15, 2016, received by OWCP on August 7, 2017, Dr. Seinfeld
indicated that the employee was admitted to the hospital on February 7, 2016 with stage IV prostate
cancer, respiratory failure, community-acquired pneumonia, and urinary tract infection. He noted
that the hospital stay was complicated by renal failure and hypovolemic shock requiring intubation,

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mechanical ventilatory support, pharmacologic support of his blood pressure, tracheostomy, and
placement of a feeding tube. Dr. Seinfeld further related that the employee had a long-standing
history of extensive coronary artery disease, atrial fibrillation, and congestive heart failure, all of
which were contributory to his death on February 24, 2016.
By decision dated November 3, 2017, OWCP denied modification of its December 5, 2016
decision finding that the evidence of record was insufficient to demonstrate that the employee’s
death was causally related to the accepted June 13, 1994 employment injury.
On February 9, 2018 appellant requested reconsideration of OWCP’s November 3, 2017
decision.
By decision dated February 21, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her case finding that the evidence submitted after the November 3,
2017 decision was duplicative of evidence that was previously in file at the time of the prior
contested decisions, and the evidence did not support that OWCP erroneously applied or
interpreted a point of law.
On September 21, 2018 appellant, through counsel, requested reconsideration of OWCP’s
November 3, 2017 decision.
In a letter dated March 15, 2017, received by OWCP on September 28, 2018, Dr. Nicholas
Skipitaris, a Board-certified clinical cardiac electrophysiologist, noted that the employee
developed a systemic infection (septic shock), respiratory failure, pneumonia, urinary tract
infection, and refractory congestive heart failure, all of which contributed to his multi-organ
system failure, and ultimate demise. He opined that decreased cardiac reserve was the major
contributor to the employee’s death.
By decision dated December 18, 2018, OWCP denied modification of its November 3,
2017 decision finding that the evidence of record did not contain sufficient medical rationale
explaining how the accepted conditions caused the employee’s death.
LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 An award of
compensation in a survivor’s claim may not be based on surmise, conjecture, or speculation or on
appellant’s belief that the employee’s death was caused, precipitated, or aggravated by the
employment.4 Appellant has the burden of proof to establish by the weight of the reliable,
probative, and substantial medical evidence that the employee’s death was causally related to an
employment injury or to factors of his federal employment. As part of this burden, he or she must
submit a rationalized medical opinion, based upon a complete and accurate factual and medical
3

5 U.S.C. § 8133 (compensation in case of death).

4
M.L. (S.L.), Docket No. 19-0020 (issued May 2, 2019); W.C. (R.C.), Docket No. 18-0531 (issued November 1,
2018); see Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

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background, establishing causal relationship between the employee’s death and an employment
injury or factors of his federal employment. Causal relationship is a medical issue and can be
established only by medical evidence.5
The mere showing that an employee was receiving compensation for total disability at the
time of his death does not establish that the employee’s death was causally related to the previous
employment.6 The Board has held that it is not necessary that there be a significant contribution
of employment factors to establish causal relationship.7 If the employment contributed to the
employee’s death, then causal relationship is established.8
ANALYSIS
The Board finds that this case is not in posture for decision.
On April 25, 2016 appellant filed a Form CA-5 requesting survivor benefits, and alleging
that the employee had passed away on February 24, 2016 in part from congestive heart failure
causally related to the accepted June 13, 1994 employment injury, which was accepted in part for
myocardial infarction.
OWCP referred the case record to Dr. Wein for a second opinion evaluation. In the referral
letter, it defined types of causal relationship, but did not inform Dr. Wein that the employee’s
accepted cardiac condition did not have to be a significant cause of his death. In his report dated
October 17, 2016, Dr. Wein opined that he agreed with Dr. Seinfeld’s opinion dated July 7, 2016,
that the employee’s preexisting cardiovascular disease was aggravated by the accepted
employment injury, when he suffered a myocardial infarction. He then noted that the employee
had multiple other medical conditions for which he was being treated at the time of his death.
Dr. Wein concluded that he did “not see a clear causal relationship” between the employee’s death
and the accepted employment injury.
The Board finds that Dr. Wein’s opinion regarding causal relationship was vague, and
required further development. Once OWCP undertakes development of the record, it has the
responsibility to do so in a proper manner, to see that justice is done.9 It should have advised
Dr. Wein that the employee’s accepted cardiac condition did not have to be a significant factor in
his death,10 but a contributing factor.11 OWCP should also have requested a supplemental
rationalized opinion from Dr. Wein as to all contributing causes of the employee’s death. As
5

J.P. (E.P.), Docket No. 18-1739 (issued May 3, 2019); see L.R. (E.R.), 58 ECAB 369 (2007).

6

J.P. (E.P.), id.; W.C. (R.C.), supra note 4; Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991).

7

M.L. (S.L.), supra note 4; see T.H. (M.H.), Docket No. 12-1018 (issued November 2, 2012).

8

Id.

9

D.W., (L.W.), Docket No. 10-0598 (issued October 6, 2010).

10

Supra note 7.

11

Supra note 8.

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OWCP did not fully develop the evidence in this case, the Board will remand it for further
development of the medical evidence. On remand, OWCP shall inform Dr. Wein of the proper
legal standard regarding causal relationship and shall request that he provide a supplemental report,
which provides a rationalized opinion regarding the cause of the employee’s death. After such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision.
Issued: August 16, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER, Cherry Point, NC,
Employer
__________________________________________

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

Docket No. 21-0146
Issued: August 25, 2021

Case Submitted on the Record

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

JURISDICTION
On November 10, 2020 appellant, through counsel, filed a timely appeal from a
September 1, 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 appellant’s claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted May 30, 2013 employment incident.
FACTUAL HISTORY
On June 3, 2013 appellant, then a 62-year-old bearing worker, ﬁled a traumatic injury claim
(Form CA-1) alleging that on May 30, 2013 he injured his right shoulder when removing part trays
from a rack with his right hand while in the performance of duty.
By decision dated August 11, 2016, OWCP denied appellant’s claim. It found that
appellant established that the May 30, 2013 incident occurred as alleged and that a medical
condition was diagnosed. However, OWCP found that causal relationship had not been established
between the accepted employment incident and the diagnosed right shoulder condition.
On August 25, 2016 counsel requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on April 19, 2017.
By decision dated June 6, 2017, OWCP’s hearing representative afﬁrmed the August 11,
2016 decision.
On September 29, 2017 appellant, through counsel, requested reconsideration.
By decision dated December 6, 2017, OWCP denied modification.
On January 18, 2018 appellant, through counsel, appealed to the Board. By decision dated
January 21, 2020, the Board found that appellant had not established a right shoulder condition
causally related to the accepted May 30, 2013 employment incident.3
On June 12, 2020 appellant, through counsel, requested reconsideration and submitted new
evidence.
In a June 3, 2020 report, Dr. Sami Moufawad, Board-certified in physical medicine and
rehabilitation, noted appellant’s history of injury and treatment. He related that on May 30, 2013
appellant slipped at the shop and tried to support himself by holding a rail, using his upper right
arm for support. Appellant was able to prevent the fall and initially did not report any symptoms,
and went on with the workday. Thereafter, he organized his work space and lifted a stack of trays
weighing approximately 1½ to 2 pounds each. When placing the trays on shelves at shoulder
height, appellant felt a tearing sensation in the right shoulder and pain that was deep, achy, and
stabbing, with no radiation, except for burning pain down to the middle of the right arm.
Dr. Moufawad noted that appellant reported the incident to his supervisor and underwent a
magnetic resonance imaging (MRI) scan of the right shoulder on June 4, 2013, which
demonstrated a tear of the right rotator cuff. He related that appellant consulted with an orthopedic
surgeon, had physical therapy and right shoulder surgery, and that the treatment helped with some
3

Docket No. 18-0529 (issued January 21, 2020).

2

of the pain and appellant’s range of motion (ROM) improved “somewhat.” Dr. Moufawad noted
that appellant retired in July 2019. He examined appellant and found that appellant’s current
symptoms included pain in the right shoulder and difficulty lifting. Dr. Moufawad diagnosed a
tear of the right rotator cuff and substantial aggravation. He explained the anatomy of the shoulder
and function of the rotator cuff and advised that, with repeated use, the “tendons start having signs
of fatigue and the tendons start developing small tears in the substance of the tendons. These
changes usually are asymptomatic until a traumatic incident occurs. However, it is important to
note that the trauma involved does not have to be of large magnitude. A simple trauma, such as
reaching or lifting one or two pounds, is enough to produce a permanent aggravation of a torn
rotator cuff.” Dr. Moufawad noted that the June 4, 2013 MRI scan findings were chronic with
retraction of the rotator cuff and mild muscle atrophy. He opined that the changes did not occur
in a period of five days; however, the aggravation of the condition that brought the symptoms to
light did occur at the time of injury on May 30, 2013, “while lifting the trays in front of him and
placing them on the shelves at and above shoulder level. The weight of these trays put additional
forces on the rotator cuff that led to the irreversible and permanent aggravation of the tear of the
rotator cuff. This led to the decrease in the power and strength and limited range of motion of the
right shoulder.” Dr. Moufawad noted that appellant was asymptomatic and had full ROM of the
right shoulder prior to the injury and opined that, if it were not for the May 30, 2013 incident,
appellant would not have had the irreversible aggravation of the chronic tear of his rotator cuff.
He further opined that the condition was not related to a natural progression, rather the incident on
May 30, 2013 “induced this irreversible and permanent aggravation of the rotator cuff tear by
lifting the trays in front of him and putting the undue mechanical toll on the torn rotator cuff.
Therefore, based on the detailed description above, the chronic tear of rotator cuff was permanently
and irreversibly aggravated by the injury on [May 30, 2013] when [appellant] was lifting the trays
to place them on a shelf in front of him. Upon lifting the trays, the rotator cuff muscles were
loaded beyond their capacity and the tear was permanently aggravated. Please note I am stating
my opinion to a reasonable degree of medical certainty.”
By decision dated September 1, 2020, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

4

Supra note 2.

5

See T.J., Docket No. 19-0461 (issued August 11, 2020); S.S., Docket No. 19-1815 (issued June 26, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB
178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is causal relationship between the claimant’s diagnosed condition and the implicated employment
factors.10 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.11
ANALYSIS
The Board finds that this case is not in posture for decision.
Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted
prior to the issuance of OWCP’s December 6, 2017 decision, which was considered by the Board
in its January 21, 2020 decision.12 Findings made in prior Board decisions are res judicata absent
further merit review by OWCP under section 8128 of FECA.13
Subsequent to OWCP’s December 6, 2017 decision, appellant submitted a June 3, 2020
report from Dr. Moufawad who diagnosed a tear of the right rotator cuff and substantial
aggravation, opined that the conditions were work related, and explained how the injury occurred
in appellant’s case. He referred to the MRI scan performed on June 4, 2013, five days after the
May 30, 2013 injury, and advised that the injury to appellant occurred “while lifting the trays in
6

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
8

F.H., Docket No. 18-0869 (issued January 29, 2020).

9

T.H., Docket No. 19-0599 (issued January 28, 2020).

10

K.C., Docket No. 18-0529 (issued January 21, 2020).

11

D.J., Docket No. 19-1301 (issued January 29, 2020).

12

Docket No. 18-0529 (issued January 21, 2020).

13

C.M., Docket No. 19-1211 (issued August 5, 2020).

4

front of him and placing them on the shelves at and above shoulder level. The weight of these
trays put additional forces on the rotator cuff that led to the irreversible and permanent aggravation
of the tear of the rotator cuff. This led to the decrease in the power and strength and limited range
of motion of the right shoulder.” Dr. Moufawad indicated that the sudden aggravation was not
related to a natural progression, and that, upon lifting the trays, the rotator cuff muscles were
loaded beyond their capacity, and the tear was permanently aggravated.
Dr. Moufawad is a Board-certified physician who is qualified in his field of medicine to
render rationalized opinions on the issue of causal relationship. He reviewed appellant’s medical
record and explained the mechanism of appellant’s injury. Although his opinion is insufficiently
rationalized to establish causal relationship, it does raise an uncontroverted inference regarding
causal relationship between the diagnosed condition and the accepted employment incident
sufficient to require that OWCP further develop the medical evidence relating to the claim.14
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation and OWCP
shares responsibility in the development of the evidence to see that justice is done.15
The case shall, therefore, be remanded for OWCP to refer appellant to a specialist in the
appropriate field of medicine, along with the case record and a statement of accepted facts. The
referral physician shall provide a well-rationalized opinion as to whether appellant’s diagnosed
conditions are causally related to the accepted employment factors. If the physician opines that
the diagnosed conditions are not causally related to the employment incident, he or she must
provide a rationalized explanation as to why their opinion differs from that of Dr. Moufawad.
After this and such other further development deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

See A.K., Docket No. 20-1426 (issued March 8, 2021); E.G., Docket No. 19-1296 (issued December 19, 2019);
John J. Carlone, 41 ECAB 354 (1989).
15
See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).

5

ORDER
IT IS HEREBY ORDERED THAT the September 1, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: August 25, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jackson, MS, Employer
__________________________________________

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

Docket No. 20-0079
Issued: October 16, 2020

Case Submitted on the Record

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

JURISDICTION
On October 10, 2019 appellant filed a timely appeal from a September 5, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
causally related to the accepted June 19, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 5, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On June 24, 2019 appellant, then a 57-year-old postmaster, filed a traumatic injury claim
(Form CA-1) alleging that on June 19, 2019 she sustained a back injury after she was involved in
a motor vehicle accident (MVA) in the performance of duty. She indicated that she was stopped
at a red traffic light when her vehicle was struck on the rear passenger side by another vehicle.
The employing establishment noted that its knowledge of the facts of the incident were in
agreement with the allegations of the appellant. Appellant stopped work on June 20, 2019 and
returned on June 21, 2019.
In a development letter dated August 1, 2019, OWCP noted that no documentation had
been submitted in support of appellant’s claim. It informed her of the type of factual and medical
evidence necessary to establish her claim. OWCP afforded appellant 30 days to submit the
necessary evidence.
In response, appellant submitted a police report dated June 19, 2019 corroborating that she
had been involved in a MVA on that date. In a narrative statement, she indicated that she was
approaching a traffic light that was in the process of turning red when she heard a vehicle behind
her attempting to stop. When appellant looked in her rearview mirror, she saw a police vehicle
approaching and explained that the police vehicle was unable to stop or avoid hitting her vehicle.
She noted that, upon impact, her vehicle was pushed into the intersection.
In an injury status report dated June 19, 2019, Sarah Bowen, a nurse practitioner, noted
that appellant reported that she had been involved in an MVA in which she was struck from behind
while stopped at a red traffic light. She diagnosed lower back pain.
In a July 31, 2019 office visit note, Dr. Aremmia Tanious, a Board-certified neurologist,
noted that appellant presented with severe mid-to-lower back pain radiating into her lower
extremities with associated numbness and tingling. Appellant reported that her symptoms began
when she was rear ended in an MVA in June 2019 while driving her work vehicle. On physical
examination Dr. Tanious found tenderness and reduced range of motion in the lumbar area and
noted a positive straight leg test, bilaterally. He provided an assessment of severe mid-to-lower
back pain following an MVA and also diagnosed insomnia.
In an office visit note dated August 5, 2019, Anny Evans, a nurse practitioner, noted that
appellant presented on follow up and reported continued back pain radiating into her legs. She
indicated that appellant had difficulty with sleeping and standing due to her pain. Ms. Evans
provided diagnoses of low back pain, radiculopathy lumbar region, as well as insomnia.
Appellant further submitted an August 6, 2019 an electromyography and a nerve
conduction velocity study of both lower extremities performed by Dr. Tanious, which revealed no
abnormalities. The record also contains an August 6, 2019 chart note by Dr. Tanious, discussing
appellant’s history of injury and treatment. Dr. Tanious diagnosed mild lumbar spondylosis with
disc bulges at L4-5 and L5-S1. He recommended physical therapy.
By decision dated September 5, 2019, OWCP accepted that the June 19, 2019 employment
incident occurred as alleged, but denied appellant’s claim, finding that she had not established a
2

diagnosed medical condition causally related to the accepted employment incident and, thus, the
requirements had not been met for establishing an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.8
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s traumatic injury claim finding that the medical evidence of
record lacked a firm diagnosis of an injury connected to the accepted June 19, 2019 employment
incident.
In his August 6, 2019 chart note, Dr. Tanious diagnosed mild lumbar spondylosis with disc
bulges at L4-5 and L5-S1. He had treated appellant for back symptoms related to the accepted
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

J.L., Docket No. 18-1804 (issued April 12, 2019).

3

July 19, 2019 MVA, and included a detailed history of injury, objective findings, and diagnostic
test results in his July 31 and August 6, 2019 reports. The Board, therefore, finds that the diagnosis
of mild lumbar spondylosis with disc bulges constitutes a medical diagnosis in connection with
the accepted June 19, 2019 employment incident.9
As the medical evidence of record establishes a diagnosed condition, the case must be
remanded for consideration of the medical evidence with regard to the issue of causal relationship.
Following any further development as deemed necessary, OWCP shall issue a de novo decision.10
CONCLUSION
The Board finds that this case is not in posture for decision.

9

M.K., Docket No. 20-0293 (issued June 22, 2020); Y.W., Docket No. 19-1877 (issued April 30, 2020).

10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the September 5, 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.
Issued: October 16, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Thousand Oaks, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1686
Issued: September 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 8, 2013 appellant, through counsel, timely appealed the March 25, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant’s claimed cervical and lumbar conditions are employment
related.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its March 25, 2013 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2012).

FACTUAL HISTORY
This case was previously before the Board.3 Appellant, a 51-year-old letter carrier, has
an accepted claim for right carpal tunnel syndrome which arose on or about June 2, 2007.4 He
also claimed to have sustained injuries to his neck and back in the performance of duty.
However, OWCP has repeatedly declined to expand appellant’s claim to include cervical and/or
lumbar conditions. When the case was initially on appeal, the Board affirmed OWCP’s finding
that appellant failed to establish that he sustained a back condition in the performance of duty.
OWCP subsequently revisited the merits of appellant’s claim, but denied modification by
decision dated July 11, 2011. The last time the case was on appeal, the Board set aside OWCP’s
July 11, 2011 decision and remanded the case for further medical development. While appellant
had not fully satisfied his burden of proof, he submitted sufficient medical evidence to warrant
further development by OWCP.5 The Board’s two prior decisions are incorporated herein by
reference.6
OWCP received additional medical evidence pertaining to appellant’s accepted right
upper extremity condition. The information included physical therapy and pain management
treatment records.7 There were also laboratory urinalysis reports, various prescription refills,
upper extremity operative reports and postsurgical follow-up examinations, as well as a July 26,
2012 bilateral upper extremity impairment rating from Dr. Mark T. Montgomery.8 This evidence
was largely irrelevant for purposes of determining the cause and extent of appellant’s claimed
cervical and lumbar conditions.
In accordance with the Board’s March 23, 2012 decision, OWCP referred appellant for
examination to determine if his neck and back conditions were employment related.
Dr. Elliott A. Schaffzin, a Board-certified orthopedic surgeon, examined appellant on June 25,
3

Docket No. 09-481 (issued September 14, 2009); Docket No. 11-1808 (issued March 23, 2012).

4

Appellant has not worked for the employing establishment since June 2007. On February 15, 2008, he
underwent a right carpal tunnel release. OWCP paid wage-loss compensation for temporary total disability through
March 18, 2008. The employing establishment relieved appellant of his duties effective July 25, 2009. On
November 28, 2011 he underwent right elbow surgery which OWCP authorized.
5

In a September 14, 2010 report, Dr. Marvin Pietruszka, a Board-certified pathologist, diagnosed, inter alia,
cervical, thoracic and lumbar discopathy which he attributed to appellant’s previous letter carrier duties. The Board
found Dr. Pietruszka’s September 14, 2010 report sufficient to warrant additional development on OWCP’s part. He
previously authored a May 23, 2008 report which both OWCP and the Board found deficient for purposes of
establishing an employment-related neck and/or back condition. Docket No. 09-481 (issued September 14, 2009).
6

See supra note 3.

7

Certain healthcare providers, such as physician assistants, nurse practitioners, physical therapists and social
workers, are not considered “physician[s]” as defined under FECA. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing entitlement under
FECA. K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).
8

Dr. Montgomery is a Board-certified orthopedic surgeon with a subspecialty in hand surgery. He operated on
appellant’s left upper extremity in October 2010. Dr. Montgomery also performed the November 28, 2011 right
elbow procedure OWCP authorized.

2

2012 and diagnosed status post bilateral carpal tunnel release and bilateral anterior transposition
of the ulnar nerves, without improvement in symptoms. He also diagnosed status post
cerebrovascular accident, with reported right upper and lower extremity residuals and multifocal
chronic pain of undetermined origin. Lastly, Dr. Schaffzin diagnosed complaints of chronic neck
and low back pain, which were nonindustrial. He stated that there was no clear etiology for
appellant’s neck and back condition, and no clear objective evidence of radiculopathy.9
Dr. Schaffzin also noted there were no limitations of motion in either the cervical or lumbar
spine. Although unable to determine the etiology of appellant’s neck and back conditions,
Dr. Schaffzin stated that these conditions were not medically connected to appellant’s federal
employment duties. He surmised that appellant’s “global symptoms” were some way related to
the stroke he suffered at work on June 2, 2007. Dr. Schaffzin also noted that appellant was a
diabetic and that he may be demonstrating a combination of residuals of the June 2, 2007 stroke
and diabetic peripheral polyneuropathy.
In an August 29, 2012 decision, OWCP denied appellant’s claim for employment-related
neck and back conditions.
Appellant’s counsel requested a review of the written record. By decision dated
March 25, 2013, the Branch of Hearings and Review affirmed OWCP’s August 29, 2012
decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.10
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.11

9

Dr. Schaffzin provided additional remarks regarding appellant’s bilateral upper extremity condition.

10

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). The fact that the etiology of a disease or condition is unknown or obscure
does not relieve an employee of the burden of establishing a causal relationship by the weight of the medical
evidence nor does it shift the burden of proof to OWCP to disprove an employment relationship. Judith J. Montage,
48 ECAB 292, 294-95 (1997).
11

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
When this matter was last on appeal, the Board remanded the case for further
development because while Dr. Pietruszka’s September 14, 2010 report did not satisfy
appellant’s burden of proof, it was sufficient to warrant further development. Accordingly,
OWCP referred appellant to Dr. Schaffzin. His June 25, 2012 report was the primary basis for
the denial of appellant’s claimed cervical and lumbar conditions.
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.12 Dr. Schaffzin did
not diagnose any specific condition(s) with respect to appellant’s cervical and/or lumbar spine.
He merely noted complaints of chronic neck and low back pain which were nonindustrial. The
absence of any specific spine-related diagnoses gives pause for concern because of the numerous
imaging studies that revealed various defects in appellant’s cervical, thoracic and lumbar spine.
Dr. Schaffzin noted some of these results in his June 25, 2012 report, but did not otherwise
comment on their significance. Additionally, Dr. Schaffzin overlooked Dr. Pietruszka’s
September 14, 2010 report, which served as the basis of the Board’s March 23, 2012 decision to
remand for further development.13 Also, Dr. Schaffzin’s diagnosis of a June 2, 2007
cerebrovascular accident appears questionable.
He surmised that appellant “may be
demonstrating ... residuals of the stroke he suffered on June 2, 2007....” Dr. Schaffzin referenced
a July 6, 2007 brain magnetic resonance imaging (MRI) scan which provided results that were
“most consistent with acute infarction.” He neglected to mention the radiologist’s July 11, 2007
addendum report which included differential diagnoses of multiple sclerosis and acute
disseminated encephalomyelitis. Also, Dr. Schaffzin failed to reconcile the July 6, 2007 MRI
scan results with appellant’s November 28, 2007 brain MRI scan which was normal. A
physician’s opinion on causal relationship must be based on a complete factual and medical
background.14
Under the circumstances, OWCP should seek further information and
clarification from Dr. Schaffzin.15 Accordingly, the case shall be remanded for further
development. After OWCP has developed the record to the extent it deems necessary, a de novo
decision shall be issued.
CONCLUSION
The case is not in posture for decision.

12

Richard F. Williams, 55 ECAB 343, 346 (2004).

13

While he provided an extensive account of Dr. Pietruszka’s May 23, 2008 examination findings, Dr. Schaffzin
omitted any reference to Dr. Pietruszka’s September 14, 2010 report.
14

Victor J. Woodhams, supra note 11. Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factors. Id.
15

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3f(2)(a) (July 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: September 29, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 08-454
Issued: December 11, 2008

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 December 5, 2007 appellant filed a timely appeal from an October 31, 2007 decision
of the Office of Workers’ Compensation Programs terminating his compensation and medical
benefits and denying his low back claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury to his low back causally related
to the accepted December 8, 2006 injury; and (2) whether the Office properly terminated
appellant’s wage-loss compensation and medical benefits effective October 31, 2007.
FACTUAL HISTORY
While delivering mail on December 8, 2006, appellant, then a 71-year-old city mail
carrier, sustained injuries to his upper extremities when a vehicle backed into him as he was
walking past a driveway. He was hospitalized and placed on a ventilator. Appellant’s claim was

accepted for closed fracture of the ribs and consequential respiratory failure, left scapular
fracture, left shoulder contusion and left elbow contusion.
In a report dated December 8, 2006, Dr. Timothy J. Pratt, a Board-certified internist,
stated that appellant had been taken to the St. Joseph’s Hospital emergency department with
severe left chest and shoulder pain, after being struck by a vehicle on that date. On
December 13, 2006 he indicated that appellant’s injuries were located in the chest, left shoulder,
left elbow and left hip and noted that appellant denied any back pain. The record contains a
January 23, 2007 discharge summary from Dr. Jennifer Page, a Board-certified physiatrist, who
described the history of injury as a left scapula fracture and multiple rib fractures.
Appellant was treated by Dr. Richard C. Lehman, a Board-certified orthopedic surgeon.
On April 10, 2007 Dr. Lehman noted the history of appellant’s injury, which involved fractured
ribs. He stated that appellant’s main problem was pain in his left shoulder, but that he also
experienced pain in his left leg, which appeared to be radiating into his back. Dr. Lehman
diagnosed spinal stenosis or acute trauma to appellant’s low back. He opined that appellant’s
back condition might be causally related to the work injury because he had never had any back
problems prior to the injury.
On May 15, 2007 Dr. Lehman described the results of a magnetic resonance imaging
(MRI) scan of the lumbar spine, which showed bulging of the annulus fibrosis at L2-3, L4-5 and
L5-S1; hypertrophic changes of the posterior facet joints throughout the lumbar spine; a definite
focal disc protrusion; and significant degenerative arthritis of the low back. An MRI scan of the
shoulder revealed degenerative hypertrophic changes of the acromioclavicular (AC) joint, with
mild impingement tendinitis; a possible tear in the distal end of the supraspinatus; and cystic
degeneration in the anterior and posterior aspects of the glenoid. Dr. Lehman’s examination
reflected good range of motion in the lower back. Although appellant had no back pain, he did
have pain in the lateral aspect of his leg, with radiculopathy. He also had pain and limited range
of motion in the left shoulder.
In a May 27, 2007 report, a district medical adviser opined that Dr. Lehman’s report was
insufficient to establish that appellant’s back condition was causally related to the accepted
December 8, 2006 injury. He stated that the May 4, 2007 MRI scan of the lumbar spine did not
show bulging of the annulus fibrosis at L2-3, L4-5, and L5-S1, and that the MRI scan findings
were not uncommon in a man of appellant’s age. The district medical adviser noted that
Dr. Lehman did not provide examination findings regarding the lumbar spine or lower
extremities or explain how the back condition could have resulted from the accepted injury. He
noted that appellant’s leg pain did not begin until three months after the accepted injury and
might be due to lower extremity arterial disease.
On June 5, 2007 appellant was referred to Dr. Jack C. Tippett, a Board-certified
orthopedic surgeon, for a second opinion examination. Dr. Tippett was asked to provide an
opinion as to whether appellant still had residuals from his accepted conditions, and whether he
had a lumbar condition that was causally related to the December 8, 2006 injury.

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In a report of a June 27, 2007 examination, Dr. Tippett opined that appellant’s accepted
conditions had resolved. Examination revealed remarkably good range of motion in the left
shoulder, with minimal tenderness, and normal range of motion in the wrists, hands and elbows.
Both hips had normal range of motion and good stability. Examination of chest expansion
showed 100 centimeters after exhaling and 103 cm on full inhalation, indicating that he had no
difficulty breathing. A neurological examination showed no significant sensory changes in the
lower extremities. Dr. Tippett diagnosed healed fracture of the left scapula, with very good
motion in the left shoulder, and healed left rib fracture, asymptomatic.
Dr. Tippett also opined that appellant did not have a lumbar condition causally related to
the December 8, 2006 injury. Examination of the back revealed no tenderness to external
palpation, and the paravertebral musculature remained tense in the lumbar region. Appellant
walked with a limp on the right side and was able to reach only half way between his knees and
ankles when asked to bend forward at the waist, with straight knees. Dr. Tippett diagnosed
chronic degenerative disc disease of the lumbar spine. However, noting that appellant’s lower
extremity pain did not begin until he started working out on a treadmill in March 2007, he agreed
with the Office medical adviser’s assessment that appellant’s back condition was not causally
related to his accepted injury. Dr. Tippett opined that appellant was unable to return to work due
to pain in his right lower extremity, which was unrelated to his accepted conditions. The record
contains a report of a June 27, 2007 MRI scan of the lumbar spine, which revealed multilevel
degenerative disc disease and mild osteoarthritis of the right hip.
The Office found a conflict in medical opinion between Dr. Lehman and Dr. Tippett as to
whether appellant’s accepted conditions had resolved, and whether he had a lumbar condition
causally related to the December 8, 2006 injury. It referred appellant, together with a statement
of accepted facts and the entire medical record, to Dr. Marvin Mishkin, a Board-certified
orthopedic surgeon, in order to resolve the conflict.
In a September 17, 2007 report, Dr. Mishkin indicated that he had reviewed the entire
medical record and statement of accepted facts. After providing a history of injury and findings
on examination, he opined that appellant had made a complete recovery from his accepted
injuries and that his lumbar condition was not causally related to the December 8, 2006 accident.
Examination of the neck revealed functional range of motion. Appellant was able to flex
forward, extend to 45 degrees, and rotate right and left to 45 degrees, with no pain. The upper
extremities were grossly symmetrical, with no evidence of motion weakness. Appellant could
abduct the shoulders to 175 degrees, flex forward to 180 degrees, and rotate internally and
externally to 90 degrees without pain. He had full range of motion of his elbows, wrists and
hands. Palpation of the shoulders anteriorly, posteriorly and laterally, and over the right and left
scapula elicited no pain. Appellant felt no pain with firm palpation in the lumbar region. He was
able to bend forward while standing, and touch his knees with his fingertips without pain or
spasm. Appellant could sit upright from a supine position, flexing his back and hips beyond 90
degrees with his knees extended, without pain or spasm. Examination of the lower extremities
revealed some tightness on rotation of the hips. Sensation was intact to pinprick, and there was
no evidence of weakness or pain.

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Dr. Mishkin opined that appellant’s accepted rib fractures and related respiratory distress,
left shoulder trauma, left elbow contusion and left scapula injuries had resolved. Noting
excellent functional range of motion, he stated that no further treatment was indicated with
regard to appellant’s accepted conditions. Dr. Mishkin diagnosed degenerative disc disease,
osteoarthritis, facet degenerative changes and spinal stenosis. He opined, within a reasonable
degree of medical certainty that these conditions were not caused by the December 8, 2006
injury. Noting that these lumbar conditions were preexisting and long-standing, Dr. Mishkin
stated that there was no objective clinical evidence of a neurological deficit related to
radiculopathy, such as sensory motor changes. In an accompanying work capacity evaluation, he
indicated that appellant was not able to perform the functions of his usual job.
In an August 14, 2007 report of a left shoulder examination, Dr. Pratt stated that
appellant’s range of motion was “quite good,” although he still had some weakness. On
September 13, 2007 Dr. Lehman stated that the range of motion in appellant’s left shoulder was
outstanding, and that in six weeks he would be able to work without restrictions.
On September 27, 2007 the Office issued a notice of proposed termination of appellant’s
compensation and medical benefits, based on Dr. Mishkin’s September 17, 2007 report. It found
that the medical evidence established that appellant’s accepted conditions had resolved, and that
his back condition was not causally related to the December 8, 2006 injury. The Office provided
30 days for appellant to respond.
Appellant submitted hospital notes dated February 23, 2007; treatment notes from
Dr. Pratt dated April 18, July 17 and August 28, 2007, addressing appellant’s complaints of hip
aches, low back pain and shoulder problems; and notes from Dr. Lehman dated August 14 to
October 6, 2007, related to left shoulder complaints. In an October 6, 2007 response to the
notice of proposed termination, appellant contended that his preexisting degenerative disc
disease was exacerbated by the December 8, 2006 injury. He stated that he did not complain of
back pain until three months after the accepted injury because he was bedridden, and did not
realize that his back had been injured.
By decision dated October 31, 2007, the Office found that the special weight of
Dr. Mishkin’s report established that appellant had no residuals from the accepted conditions,
and no consequential injuries to his back related to the accepted conditions or the December 8,
2006 injury. It terminated appellant’s medical and wage-loss compensation benefits effective
that day. The Office also denied the expansion of his claim to include a back condition.
LEGAL PRECEDENT -- ISSUE 1
Regarding consequential injuries, 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.1

1

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006) citing A. Larson, The Law of Workers’
Compensation § 10.01 (2004).

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Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury.2 To establish a causal relationship between the
condition claimed, as well as any attendant disability, and the employment event or incident, an
employee must submit rationalized medical evidence based on a complete medical and factual
background supporting such a causal relationship.3 Causal relationship is a medical issue, and
the medical evidence required to establish a causal relationship is rationalized medical evidence.4
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed
condition and the implicated employment factors. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.5 Neither the 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.6
The Act provides that, if there is a disagreement between a physician making an
examination for the United States and the physician of the employee, the Secretary must appoint
a third physician to make an examination.7 Likewise, the implementing regulation states 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 Office medical adviser or consultant, the
Office must appoint a third physician to make an examination. This is called a referee
examination, and the Office is required to select a physician who is qualified in the appropriate
specialty, and who has had no prior connection with the case.8 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background, must be given special weight.9

2

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

3

Jennifer Atkerson, 55 ECAB 317 (2004).

4

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

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

6

Ernest St. Pierre, 51 ECAB 623 (2000).

7

5 U.S.C. §§ 8101-8193, 8123(a).

8

20 C.F.R. § 10.321.

9

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

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ANALYSIS -- ISSUE 1
The Office denied appellant’s claim for a low back condition. The issue is whether he
has met the burden of proof to establish that his diagnosed back conditions are causally related to
his accepted injury. The Board finds that appellant has not met his burden of proof.
The Office properly determined that a conflict existed in the medical opinion evidence as
to whether appellant had a lumbar condition causally related to the December 8, 2006 injury. On
the one hand, appellant’s treating physician, Dr. Lehman, diagnosed spinal stenosis and opined
that the back condition was causally related to the accepted injury. On the other hand, the
Office’s second opinion physician, Dr. Tippett, opined that appellant did not have a lumbar
condition causally related to the December 8, 2006 injury. He diagnosed chronic degenerative
disc disease of the lumbar spine. However, noting that appellant’s lower extremity pain did not
begin until he started working out on a treadmill in March 2007, he agreed with the Office
medical adviser’s assessment that appellant’s back condition was not causally related to his
accepted injury.
To resolve the conflict in medical opinion between Drs. Lehman and Tippett, the Office
properly referred appellant to Dr. Mishkin for an impartial medical examination and an opinion
as to whether appellant had a lumbar condition causally related to the December 8, 2006 injury.
Dr. Mishkin reviewed the entire record and statement of accepted facts, performed a thorough
examination of appellant, and provided detailed findings of his examination in his September 17,
2007 report. He diagnosed degenerative disc disease, osteoarthritis, facet degenerative changes
and spinal stenosis. Dr. Mishkin opined, within a reasonable degree of medical certainty, that
these conditions were not caused by the December 8, 2006 injury. Noting that these lumbar
conditions were preexisting and long-standing, he stated that there was no objective clinical
evidence of a neurological deficit related to radiculopathy, such as sensory motor changes.
The Board finds that the Office properly relied on Dr. Mishkin’s September 17, 2007
report in determining that appellant did not have a lumbar condition causally related to the
accepted employment injury. Dr. Mishkin’s opinion is sufficiently well rationalized and based
upon a proper factual background. He examined appellant thoroughly and reviewed the medical
records. Dr. Mishkin reported accurate medical and employment histories. The Office properly
accorded special weight to the impartial medical specialist’s findings.10
Appellant did not submit sufficient medical evidence to overcome the weight of
Dr. Mishkin’s opinion or to create a new conflict. He submitted notes from Dr. Lehman, who
was on one side of the conflict. Reports from a physician who was on one side of a medical
conflict resolved by an impartial specialist, are generally insufficient to overcome the weight
accorded to the report of the impartial medical examiner, or to create a new conflict.11 Appellant
submitted hospital notes and treatment notes from Dr. Pratt reflecting appellant’s complaints of
hip aches, low back pain and shoulder problems. However, these reports did not explain how his
10

Bryan O. Crane, 56 ECAB 713 (2005).

11

See Jaja K. Asaramo, supra note 2.

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condition was physiologically related to the accepted employment injury. Therefore, the reports
are of limited probative value. Appellant contended that his preexisting degenerative disc
disease was exacerbated by the accepted injury. However, his belief alone is insufficient to
establish a causal relationship.12
The Board finds that appellant has not met his burden of proof to establish that his back
condition was causally related to his accepted work injury. Therefore, the Office properly denied
his request to expand his claim to include a back condition.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim, it has the burden of proving that the disability has ceased
or lessened in order to justify termination or modification of compensation benefits.13 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.14 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.15 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.16
Section 8123(a) of the Federal Employees’ Compensation Act 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.17 When there are opposing reports of virtually equal weight and rationale, the
case must be referred to an impartial medical specialist, pursuant to section 8123(a) of the Act, to
resolve the conflict in the medical evidence.18
ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for closed fracture of the ribs and consequential
respiratory failure; left scapular fracture; left shoulder contusion; and left elbow contusion. It,
therefore, bears the burden of justifying the termination of appellant’s compensation and medical
benefits for these medical conditions.

12

Ernest St. Pierre, supra note 6.

13

See Beverly Grimes, 54 ECAB 543 (2003).

14

James M. Frasher, 53 ECAB 794 (2002).

15

See Beverly Grimes, supra note 13. See also Franklin D. Haislah, 52 ECAB 457 (2001).

16

See Beverly Grimes, supra note 13.

17

5 U.S.C. § 8123(a).

18

William C. Bush, 40 ECAB 1064, 1075 (1989).

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The Office properly determined that a conflict existed in the medical opinion evidence as
to whether appellant had any disability or residuals due to his accepted conditions. On the one
hand, appellant’s treating physician, Dr. Lehman, opined that he was unable to work in his date
of injury job and had continuing residuals due to his accepted conditions. He found limited
range of motion in the left shoulder. Dr. Lehman also noted considerable degenerative
hypertrophic changes of the AC joint, with mild impingement tendinitis; a possible tear in the
distal end of the supraspinatus; and cystic degeneration in the anterior and posterior aspects of
the glenoid, pursuant to an MRI scan. On the other hand, the Office’s second opinion physician,
Dr. Tippett, opined that the accepted conditions had resolved.
In order to resolve the conflict, the Office referred appellant to Dr. Mishkin for an
impartial medical examination and an opinion as to whether he had residuals from his accepted
injury and, if so, whether his symptoms were disabling. Dr. Mishkin reviewed the entire record
and statement of accepted facts, and performed a thorough examination of appellant. In his
September 17, 2007 report, he provided detailed findings of his examination and opined that
appellant had made a complete recovery from his accepted injuries. Examination of the neck
revealed functional range of motion, with no pain. Appellant had full range of motion of his
elbows, wrists and hands. The upper extremities were grossly symmetrical, with no evidence of
motion weakness. Appellant could abduct his shoulders to 175 degrees, flex forward to 180
degrees, and rotate internally and externally to 90 degrees without pain. Palpation of the
shoulders anteriorly, posteriorly and laterally, and over the right and left scapula, elicited no
pain. Dr. Mishkin opined that appellant’s accepted rib fractures and related respiratory distress,
left shoulder trauma, left elbow contusion, and left scapula injuries had fully resolved, and that
no further treatment was indicated with regard to his accepted conditions.
Dr. Mishkin also diagnosed degenerative disc disease, osteoarthritis, facet degenerative
changes, and spinal stenosis, and concluded that appellant was unable to perform the duties of a
mail carrier as a result of his back condition. The Board notes, however, that appellant’s back
condition was not accepted by the Office, and appellant has not established that he sustained a
back injury as a result of the December 8, 2006 injury. Therefore, the evidence does not
establish that appellant’s disability for work is causally related to his accepted injury.
The Board finds that the Office properly relied on Dr. Mishkin’s September 17, 2007
report in determining that appellant was not disabled as a result of, and had no residuals from, his
accepted employment injury. As noted above, his opinion is sufficiently well rationalized and
based upon a proper factual background. The Office properly accorded special weight to the
impartial medical specialist’s findings.19
Appellant did not submit sufficient medical evidence to overcome the weight of
Dr. Mishkin’s opinion, or to create a new conflict. As noted above, reports that do not explain
how appellant’s condition was physiologically related to the accepted employment injury, and
reports from physicians on one side of the conflict, are of limited probative value. As the weight
of the medical evidence establishes that appellant was no longer disabled as a result of, and had

19

Bryan O. Crane, supra note 10.

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no residuals from, his accepted conditions, the Office properly terminated his compensation and
medical benefits.
CONCLUSION
The Board finds that appellant has not established that he sustained a back injury causally
related to the accepted December 8, 2006 injury. The Board further finds that the Office
properly terminated appellant’s compensation and medical benefits effective October 31, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 31, 2007 is affirmed.
Issued: December 11, 2008
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

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