United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
Howard Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1853
Issued: January 19, 2016

Case Submitted on the Record

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

JURISDICTION
On September 9, 2015 appellant, through counsel, filed a timely appeal from a July 23,
2015 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 appellant has established that a modification of a July 31, 2009
wage-earning capacity determination was warranted.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has been before the Board on a prior appeal.2 On May 10, 2001 appellant, then
a 47-year-old welder, filed an occupational disease claim (Form CA-2) alleging that he
developed carpal tunnel syndrome as a result of his federal employment. OWCP accepted the
claim on August 27, 2001 for bilateral carpal tunnel syndrome.3 The record indicates that
appellant underwent a right carpal tunnel release surgery on December 28, 2001 and a left carpal
tunnel release surgery on January 25, 2002. He also had a left ulnar nerve decompression
surgery on June 5, 2003. Appellant returned to a light-duty position, but stopped work on
September 22, 2003. He returned to work at four hours a day on October 14, 2003 and then filed
a traumatic injury claim (Form CA-1) for injuries occurring on October 18, 2005 when he fell on
stairs, OWCP File No. xxxxxx349. OWCP accepted that claim for neck strain, right shoulder
rotator cuff tear, and right shoulder adhesive capsulitis. Appellant began receiving compensation
for temporary total disability which OWCP based on four hours a day for the occupational
disease claim and four hours for the traumatic injury claim.
OWCP sent a copy of the job description for a motor vehicle dispatcher (Department of
Labor’s Dictionary of Occupational Titles, DOT # 249.157-014) to the attending physician,
Dr. Michael McManus, a Board-certified occupational medicine specialist. The job description
indicated that the job involved compiling lists of vehicles, assigning vehicles, recording data,
maintaining records, and issuing equipment. The position was identified as sedentary, with a 10
pound lifting requirement, and occasional fingering and handling. OWCP requested an opinion
as to whether appellant could perform the job duties. In a response dated September 19, 2008,
Dr. McManus checked a box marked “approve this occupation.”
By decision dated July 31, 2009, OWCP reduced appellant’s compensation, finding that
he had the capacity to earn wages of $470.40 a week in the position of motor vehicle dispatcher.
Appellant filed a claim for a recurrence of disability (Form CA-2a) on February 22, 2012.
The evidence submitted included a report dated March 5, 2012 from Dr. McManus, who asserted
that appellant’s condition had worsened. Dr. McManus reported that appellant had “developed
reactive severe and recurrent lymphedema of his upper extremities, greatest right elbow-hand
with any sustained or repetitive use of his hand.” By decision dated April 17, 2012, OWCP
denied modification of the wage-earning capacity determination. Appellant requested a hearing.
On December 13, 2012 an OWCP hearing representative affirmed the April 17, 2012 decision.
In its June 12, 2013 decision, the Board affirmed the December 13, 2012 OWCP
decision. The Board found that the medical evidence did not show a material change in the
nature and extent of an injury-related condition. It was noted that OWCP had not accepted a
lymphedema condition.

2

Docket No. 13-0603 (issued June 12, 2013).

3

A March 29, 2007 OWCP decision found the accepted conditions also included bilateral epicondylitis and right
trigger finger.

2

Appellant continued to submit medical evidence regarding his condition. In a report
dated March 8, 2013, Dr. McManus indicated that appellant reported “increased paresthesias
involving ulnar distribution right hand with right dysesthesias interfering with sleep.” He noted
that appellant had permanent work restrictions and there was “no change.” Dr. McManus noted
a March 1, 2013 electromyogram/nerve conduction study (EMG/NCV) from Dr. Donald Bright,
a neurologist. Dr. Bright reported that there was evidence of moderate right carpal tunnel, that
had “progressed” since a 2008 study.
On August 15, 2014 appellant submitted a (Form CA-2a) notice of recurrence dated
May 22, 2014. He submitted a May 8, 2013 report from Dr. Benjamin Betteridge, Boardcertified in emergency medicine, who diagnosed carpal tunnel syndrome. Dr. Betteridge
indicated that appellant reported pain and weakness in grip and was frustrated with continuing
symptoms. Appellant also resubmitted the March 1, 2013 EMG/NCV study.
By letter dated August 19, 2014, OWCP requested that appellant submit additional
evidence with respect to modification of a wage-earning capacity determination. Appellant
submitted a September 12, 2014 statement asserting that he was totally disabled. According to
him he could not do any repetitive work and had to take pain medication daily. In a report dated
September 4, 2014, Dr. McManus opined that, because of appellant’s multiple upper extremity
conditions and surgeries, he had developed post-traumatic lymphedema of his right greater than
left distal upper extremity. He reported that recent electrodiagnostic testing has confirmed a
progression or worsening of appellant’s right carpal tunnel syndrome status post carpal tunnel
release. Dr. McManus opined, “This is a direct result of [appellant’s] secondary upper extremity
post[-]traumatic lymphedema. This chronic lymphedema which is aggravated by any sustained
or repetitive use of his hands or upper extremities increases the pressure within the carpal tunnel
and has resulted in a recurrence of his right carpal tunnel syndrome status post carpal tunnel
release.”
The case was referred to an OWCP medical adviser with respect to whether lymphedema
should be accepted as a consequential injury. In a report dated September 18, 2014, the medical
adviser, Dr. L.I. Weaver, opined that appellant’s “bilateral upper extremity aching, stiffness,
cold sensitivity, and diffuse brawny edema are more likely than not a consequence of his work,
accepted conditions and surgery for the accepted conditions.” The medical adviser indicated that
the treating physician had reported the most likely diagnosis to explain the diffuse brawny
swelling was bilateral lymphedema and it was most likely a consequence of appellant’s work
duties, accepted conditions, and surgery for the accepted conditions. On September 19, 2014
OWCP accepted lymphedema.
By decision dated October 16, 2014, OWCP found that the evidence of record was
insufficient to warrant modification of the July 31, 2009 wage-earning capacity determination. It
noted the lymphedema was an accepted condition, but Dr. McManus did not explain how the
condition had changed such that appellant was disabled for the motor vehicle dispatcher position.
On October 27, 2014 OWCP received a note dated October 17, 2014 from Dr. McManus,
indicating that appellant had received a denial from OWCP and wished to discuss the reasons he
could not perform the dispatcher position. Dr. McManus indicated that appellant would discuss
with his representative and bring the denial letter to Dr. McManus for review. In a report dated

3

October 23, 2014, he provided results on examination and indicated that appellant continued to
have permanent work restrictions.
In a report dated November 12, 2014, Dr. McManus wrote that appellant had posttraumatic lymphedema, as noted in his prior chart notes. He reported that appellant’s condition
was recurrently aggravated by any repetitive use of his hands, and that he had involvement of the
right or dominant hand much more severe than the left hand. Dr. McManus reported that this
edema results in progressive limited use of his hand function with aggravation of his carpal
tunnel symptoms, digit, stiffness, and pain. He opined, “Due to this condition, [appellant] has
previously failed or been unable to complete a computer retraining class. The job of dispatcher
requires repetitive use of keyboard and rapid fingering. [Appellant] would be unable to perform
this job due to his chronic upper extremity deficits, lymphedema, and recurrent right carpal
tunnel syndrome.”
On June 5, 2015 appellant, though counsel, submitted a request for reconsideration. He
submitted a December 10, 2014 report from Dr. McManus, indicating that he had reviewed the
job description for a motor vehicle dispatcher. Dr. McManus reported that appellant “cannot lift
or carry 5 pounds for 5-1/3 hours per day, much less 10 pounds occasionally for 1/3 of the day
due to the swelling in his arms or his bilateral recurrent upper extremity lymphedema, which has
caused a recurrence of his right carpal tunnel syndrome.” He further noted that appellant could
not reach frequently for 2/3 of the workday due to his recurrent upper extremity lymphedema
and recurrent right carpal tunnel syndrome, and that his work restrictions were five pounds
lifting for one hour per day, no pushing or pulling of more than five pounds per day, and no
reaching in front or above his head for more than one hour per day, with no keyboarding.
Dr. McManus concluded, “The chronic lymphedema is the reason for lowering [appellant’s]
weight restriction to [five] pounds and the repetitive motion to even 1/3 of the day exacerbates
the swelling and edema in his arms and hands. [To] a reasonable medical certainty, [appellant]
cannot perform the job duties of motor vehicle operator [sic].”
In a report dated July 8, 2015, Dr. McManus provided results on examination.
indicated that appellant continued to have permanent work restrictions.

He

By decision dated July 23, 2015, OWCP declined to modify the July 31, 2009 wageearning capacity determination. It found that the increased work restrictions were based on a
telephone consultation, and the dispatcher position did not involve constant keyboarding or rapid
fingering, as described by Dr. McManus. In addition, OWCP found that the change in
restrictions was based largely on complaints of recurrent swelling with repetitive motions, but
on-going medical evidence showed only mild edema on the right hand/wrist.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

4

rehabilitated, or the original determination was, in fact, erroneous.4 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.5
ANALYSIS
In the present case, OWCP determined on July 31, 2009 that the selected position of
motor vehicle dispatcher represented appellant’s wage-earning capacity. Appellant seeks to
modify the wage-earning capacity determination on the basis that there was a material change in
the nature and extent of the injury-related condition. He therefore bears the burden of proof to
modify the wage-earning capacity determination.
In his September 4, 2014 report, Dr. McManus noted a worsening of appellant’s carpal
tunnel syndrome on an EMG/NCV report and opined that it was the result of the lymphedema
increasing the pressure within the carpal tunnel. He opined in his November 12, 2014 report that
the edema results in progressive limited use of appellant’s hand function with aggravation of his
carpal tunnel symptoms, with stiffness and pain. In his December 10, 2014 report, Dr. McManus
indicated that he had reviewed the job requirements for the motor vehicle dispatcher position and
opined that appellant could not perform the position.
The Board notes that at the time of the Board’s last decision on June 12, 2013 the
condition of lymphedema was not an accepted condition. OWCP further developed the evidence
and referred the evidence to an OWCP medical adviser for an opinion as to whether the
lymphedema was a consequential injury. Based on the opinion of the medical adviser, OWCP
accepted lymphedema as a consequential injury on September 19, 2014.
In the case of M.M., the claimant had submitted medical evidence supporting a worsening
of a newly diagnosed shoulder condition.6 The issue in the case was whether a wage-earning
capacity determination should be modified. OWCP requested an opinion from an OWCP
medical adviser as to whether the shoulder condition was a consequential injury. Based on the
opinion of the medical adviser, the condition was accepted as a consequential injury. The Board
held that OWCP should have further developed the issue of whether there was a worsening of the
accepted shoulder condition such that it constituted material change in the nature and extent of
the injury-related condition.
A similar situation is presented in the instant case. Appellant requested modification of a
wage-earning capacity determination and submitted supporting evidence. OWCP began
development of the medical evidence, but failed to do a complete job that resolved all of the
relevant issues. Having determined that the lymphedema was employment related, OWCP
should have further developed the medical evidence to determine if it warranted modification of
the wage-earning capacity determination.

4

Sue A. Sedgwick, 45 ECAB 211 (1993).

5

Id.

6

Docket No. 11-0681 (issued October 4, 2011).

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Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.7 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.8 In this case, appellant alleged and
submitted medical evidence in support of her claim that her condition worsened following the
issuance of a wage-earning capacity determination. OWCP began to develop the evidence by
seeking an opinion from the district medical adviser as to whether his lymphedema condition
was consequential to the accepted injury. It failed, however, to seek clarification as to whether
appellant’s condition had materially worsened due to the lymphedema condition. Without such
information, an informed decision cannot be reached on the relevant issue.
On remand, OWCP should secure a probative opinion on the issue presented. After such
further development as is necessary, it should issue a merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision and is remanded to OWCP for
further development.

7

William J. Cantrell, 34 ECAB 1223 (1983).

8

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

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 23, 2015 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: January 19, 2016
Washington, DC

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

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

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

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

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0654
Issued: October 17, 2018

Case Submitted on the Record

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

JURISDICTION
On February 5, 2018 appellant, through counsel, filed a timely appeal from an August 15,
2017 merit decision and a January 2, 2018 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2

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.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.3
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish bilateral
wrist and shoulder conditions causally related to the accepted factors of her federal employment;
and (2) whether OWCP properly denied appellant’s request for reconsideration of the merits of the
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 17, 2016 appellant, then a 60-year-old medical technician, filed an occupational
disease claim (Form CA-2) alleging that she developed right wrist carpal tunnel syndrome due to
her employment duties of repetitive typing, dialing a microscope, and using centrifuge and other
laboratory equipment.4 She alleged that she first became aware of the claimed condition on
April 1, 2015 and realized its relationship to her federal employment on February 16, 2016.
Appellant did not submit additional evidence.
By development letter dated June 14, 2016, OWCP advised appellant of the deficiencies in
her claim. A questionnaire was provided for her completion regarding the circumstances of the
injury. Appellant was also asked to provide a narrative medical report from her physician which
contained a detailed description of findings and diagnoses, explaining how the claimed work
activities caused, contributed to, or aggravated her medical condition. OWCP afforded her 30
days to submit the requested information. In a separate letter dated June 14, 2016, it also requested
that the employing establishment provide additional information in response to appellant’s
allegations.
In a work capacity evaluation dated March 23, 2016, Dr. Bin Yang, an occupational
medicine physician, provided diagnoses of neck strain and left shoulder sprain. In an employee
health record dated April 25 and May 17, 2016, he noted appellant’s right wrist complaints and
April 26, 2016 right carpal tunnel release. Dr. Yang also noted that an electromyogram and nerve
conduction velocity (EMG/NCV) study was performed on April 15, 2016.
Hospital records from Saint Barnabas Medical Center documented that appellant was
evaluated in the emergency room for right arm paresthesia and muscular pain on March 28, 2016,
that she was given discharge instructions following her evaluation on March 28, 2016, and that
carpal tunnel release surgery was performed on April 26, 2016.
In reports dated April 15 and 26, and May 31, 2016, Dr. Alan Cooper, a Board-certified
orthopedic surgeon, reported that he had examined appellant and diagnosed right carpal tunnel
3

Appellant submitted new evidence on appeal. The Board’s jurisdiction, however, is limited to the evidence that
was before OWCP at the time of its final decision. Therefore, the Board is precluded from reviewing this new evidence
for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
4

OWCP assigned the claim File No. xxxxxx206.

2

syndrome. He performed right carpal tunnel release on April 26, 2016 to treat the diagnosed
condition and subsequently released appellant to return to work on July 1, 2016.
The employing establishment, in a July 15, 2016 letter, responded to OWCP’s June 14,
2016 development letter. It noted that it had not received a statement from appellant and therefore
it had no comment. The employing establishment described her medical technician work duties,
work area, and work equipment. It related that it first received notice about appellant’s condition
on March 25, 2016 and that she used sick leave on that day. On March 29, 2016 the employing
establishment received a note from appellant’s physician placing her off work through
April 8, 2016. It noted that appellant had not returned to work. The employing establishment
submitted a copy of her medical technician position.
By decision dated August 11, 2016, OWCP denied appellant’s occupational disease claim.
It found that the medical evidence of record was insufficient to establish diagnosed medical
conditions causally related to the accepted work event(s).5
In additional reports dated April 11 and May 15, 2016, Dr. Cooper again examined
appellant and reiterated his diagnosis of right wrist carpal tunnel syndrome. He also provided an
impression of right shoulder calcific tendinitis.
In an April 21, 2016 letter, Dr. Dong W. Cho, a Board-certified physiatrist, performed an
EMG/NCV based on a referral from Dr. Cooper. He reported findings suggestive of moderate-tosevere right carpal tunnel syndrome with axonal degeneration in abductor policies brevis. Dr. Cho
found no electrophysiological abnormal findings to indicate tardy ulnar entrapment at the elbow
or cervical radiculopathy.
On October 4, 2016 appellant, through counsel, requested reconsideration of the
August 11, 2016 decision, contending that an accompanying September 20, 2016 letter from
Dr. Cooper was sufficient to establish causal relationship between her shoulder and wrist
conditions and her laboratory technician work duties. Dr. Cooper noted a history that she
presented in the Saint Barnabas Medical Center emergency room on March 27, 2016 initially
complaining about right dominant shoulder pain and experiencing right hand numbness for three
weeks. He initially saw appellant on March 29, 2016 in his office. Appellant was diagnosed with
rotator cuff tendinitis and carpal tunnel syndrome secondary to repetitive overuse of the right upper
extremity associated with her occupation as a laboratory technician. Dr. Cooper noted that he
5

On September 21, 2016 appellant filed a second occupational disease claim (Form CA 2), alleging that she
sustained bilateral wrist carpal tunnel syndrome and bilateral shoulder tendinitis due to her federal employment duties.
She noted her April 26, 2016 right wrist surgery. OWCP assigned the claim File No. xxxxxx009. Appellant filed a
third occupational disease claim dated September 6, 2016, assigned OWCP File No. xxxxxx009, again alleging that
she sustained bilateral wrist carpal tunnel syndrome and a bilateral shoulder injury due to her federal employment.
OWCP, in a May 8, 2017 letter, advised counsel that, although she was claiming additional conditions, she attributed
these conditions to the same factors of employment listed in her May 17, 2016 Form CA-2. OWCP recommended
that appellant appeal from the December 30, 2016 decision. By decision dated May 16, 2017, OWCP determined that
her September 6 and 21, 2016 claims assigned OWCP File No. xxxxxx009 were duplicates of the instant claim
assigned OWCP File No. xxxxxx206. It related that it was unnecessary to formally adjudicate the September 6 and
21, 2016 claims under File No. xxxxxx009. OWCP again advised appellant that she should pursue her appeal rights
associated with the December 30, 2016 decision.

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placed her on an oral steroid. He saw appellant again on April 15, 2016 and related that her right
shoulder pain had subsided, however, she continued to complain about symptoms related to her
carpal tunnel syndrome. Dr. Cooper ordered an EMG/NCV study which revealed neurologic
evidence of carpal tunnel syndrome. He noted that he performed right carpal tunnel release on
May 6, 2016 and that postoperatively, appellant developed complex regional pain syndrome and
significant swelling and loss of hand motion, which precluded her from returning to her laboratory
technician position and required extensive occupational therapy. Dr. Cooper related that her
complaints of numbness and tingling in her left hand were consistent with a clinical diagnosis of
carpal tunnel syndrome. He further related that appellant’s symptoms had improved upon his
follow-up evaluations on May 13 and 27, July 13, and August 17, 2016, but she was still not
capable of returning to full-duty work involving keying, typing, dialing a microscope, and using a
centrifuge and lifting equipment which had contributed to the development of her right upper
extremity symptoms. Dr. Cooper concluded that, within a reasonable degree of medical certainty,
all of her bilateral upper extremity symptoms (i.e., shoulder tendinitis and carpal tunnel syndrome)
were related to repetitious overload associated with her occupation as a laboratory technician.
By decision dated December 30, 2016, OWCP modified its August 11, 2016 decision to
reflect that appellant’s claim was denied based on both fact of injury and lack of causal
relationship. It found the evidence insufficient to establish the factors of her federal employment
as alleged, as she had not responded to its June 14, 2016 development questionnaire and failed to
provide a detailed description of the employment-related activities she attributed to her diagnosed
medical conditions. OWCP further noted that the medical evidence of record remained insufficient
to establish causal relationship between the claimed work factors and appellant’s diagnosed
conditions.
On May 17, 2017 counsel requested reconsideration of the December 30, 2016 decision.
He submitted appellant’s May 11, 2017 narrative statement in which she described her medical
laboratory technician duties. Appellant related that she worked in this position for 29 years. She
sorted specimens, opened bottles and cups, logged specimens, drew blood, and ran specimens in
different types of instruments and especially operated a computer. Appellant spent a great deal of
time on the computer using the keyboard. She claimed that she first developed carpal tunnel
syndrome in her right hand and then in both hands. Appellant indicated that she performed a
significant amount of keying and typing. She also performed repetitive work and bent her wrists
all the time. Appellant used equipment, including microscopes and other equipment. She
attributed her hand problems to her repetitive work duties. Appellant retired from the employing
establishment in March 2016. Counsel resubmitted Dr. Cooper’s September 20, 2016 letter.
By decision dated August 15, 2017, OWCP modified its December 30, 2016 decision to
find that the evidence of record was sufficient to establish that the claimed employment factors
occurred, as alleged. The claim remained denied, however, as the medical evidence submitted did
not contain a well-rationalized medical opinion explaining how the diagnosed conditions were
causally related to the accepted work-related activities.
On October 11, 2017 appellant, through counsel, again requested reconsideration. Counsel
contended that Dr. Cooper’s September 20, 2016 letter established that her right rotator cuff
tendinitis and carpal tunnel syndrome were due to overuse of her right arm in her laboratory
technician job. He resubmitted appellant’s May 11, 2017 narrative statement.

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By decision dated January 2, 2018, OWCP denied further merit review of appellant’s
claim. It found that the evidence submitted was repetitious and insufficient to warrant review of
the August 15, 2017 decision.
LEGAL PRECEDENT -- ISSUE 1
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) 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 employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish a causal relationship is rationalized medical opinion evidence. The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable certainty, and must be supported by medial rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish bilateral wrist
and shoulder conditions causally related to the accepted factors of her federal employment.
Appellant submitted a series of reports from Dr. Cooper dated April 15 through
September 20, 2016. In the September 20, 2016 report, Dr. Cooper discussed examination
findings, diagnosed right rotator cuff tendinitis and carpal tunnel syndrome, and noted that the
latter condition required surgery. He also noted that, following surgery, appellant developed
complex regional pain syndrome which prevented her from returning to her laboratory technician
duties. Dr. Cooper opined that the diagnosed conditions were secondary to her repetitive work
duties. However, he did not provide a probative, rationalized opinion regarding how the accepted

6

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

7

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

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work duties caused the claimed conditions.9 Dr. Cooper only generally described appellant’s
repetitive work activities and he did not sufficiently explain the reasons why, medically, she would
have sustained a right shoulder and right wrist conditions due to these work duties. The Board has
held that a mere conclusion without the necessary rationale explaining how her specific accepted
work duties could result in the diagnosed condition is insufficient for the employee to meet her
burden of proof.10 While Dr. Cooper’s remaining reports dated April 15 through May 31, 2016
noted that appellant had right wrist carpal tunnel syndrome that, required surgery, he failed to
provide a specific opinion as to whether the diagnosed condition and resultant surgery were caused
or aggravated by the accepted employment factors.11 As such, the Board finds that his reports are
insufficient to meet her burden of proof.
Similarly, the March 28, 2016 hospital records, and Dr. Yang’s March 23, 2016 work
capacity evaluation and April 25 and May 17, 2016 treatment notes relative to appellant’s left
shoulder and right wrist conditions are of diminished probative value on the issue of causal
relationship. This evidence did not offer any medical opinion finding that the diagnosed conditions
were caused by the established employment duties.12
OWCP also received diagnostic reports. The Board has held that reports of diagnostic tests
are of limited probative value as they do not provide an opinion on causal relationship between
appellant’s employment duties and the diagnosed conditions.13
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish that she sustained bilateral wrist and shoulder conditions causally related to
the accepted factors of her federal employment. Appellant therefore has not met her burden of
proof.
On appeal, counsel contends that Dr. Cooper’s September 20, 2016 report is sufficient to
establish that appellant’s shoulder tendinitis and carpal tunnel syndrome are due to her federal
employment. However, for the reasons noted above, Dr. Cooper failed to explain with medical
rationale how the established employment factors caused or aggravated her right shoulder and right
wrist conditions.14 Thus, his opinion is insufficient to establish that appellant’s conditions were
caused by the established work activities.

9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
10

See J.S., Docket No. 18-0477 (issued August 28, 2018).

11
A.D., 58 ECAB 159 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
12

Id.

13

See R.T., Docket No. 17-2019 (issued August 24, 2018).

14

See supra note 9.

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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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application
by a claimant.15 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).16 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.17 Section 10.608(b) provides that when a request for reconsideration is
timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C § 8128(a).
Appellant’s October 11, 2017 request for reconsideration, did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Counsel reiterated his contention that Dr. Cooper’s
September 20, 2016 report established that appellant sustained shoulder and wrist conditions due
to her employment duties. This allegation was previously considered by OWCP in its
December 30, 2016 decision. Evidence or argument that repeats or duplicates evidence previously
of record has no evidentiary value and does not constitute a basis for reopening a case.19 As such,
appellant is not entitled to a review of the merits of her claim based on the first and second abovenoted requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered with her October 11, 2017 request for reconsideration. Appellant
resubmitted her May 11, 2017 narrative statement which described her work duties. The Board
finds that the submission of this evidence did not require reopening her case for merit review
15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.608(a).

17

Id. at § 10.606(b)(3).

18

Id. at § 10.608(b).

19

See D.K., 59 ECAB 141 (2007).

7

because she had submitted duplicative evidence, which was previously reviewed by OWCP in its
August 15, 2017 decision. As appellant’s narrative statement repeats evidence already of record,
it is duplicative, and does not constitute relevant and pertinent new evidence.20 Because appellant
did not provide any probative relevant and pertinent new evidence, she is not entitled to a review
of the merits based on the third requirement under section 10.606(b)(3).21
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.22
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral wrist
and bilateral shoulder conditions causally related to the accepted factors of her federal
employment. The Board further finds that OWCP properly denied her request for reconsideration
of the merits of her claim pursuant to 5 U.S.C § 8128(a).

20

Id.

21

20 C.F.R. § 10.606(b)(3).

22

See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,
Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006);
(when an application for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the merits).

8

ORDER
IT IS HEREBY ORDERED THAT the January 2, 2018 and August 15, 2017 merit
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 17, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Hilo, HI, Employer
__________________________________________

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Appearances:
Andy T. Ahuna-Alofaituli, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1956
Issued: February 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 25, 2015 appellant, through her representative, filed a timely appeal from
an August 20, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Appellant submitted additional medical evidence after OWCP rendered its August 20, 2015 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish that her left shoulder
condition was causally related to her accepted November 8, 2012 employment injury.
FACTUAL HISTORY
On November 9, 2012 appellant, then a 35-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on November 8, 2012 she lifted a heavy bag
onto the conveyor belt and felt a pinch in her right arm and shoulder. OWCP assigned File No.
xxxxxx300. It subsequently accepted the claim for a right shoulder and upper arm sprain and
other affections of the right shoulder region, not elsewhere classified. Appellant received
continuation of pay and then compensation benefits for wage loss. She returned to modified duty
on February 4, 2013. On March 22, 2013 appellant underwent an authorized right shoulder
subacromial decompression and limited synovectomy. She began receiving compensation
benefits for wage loss. On June 10, 2013 appellant returned to light duty as a modified
transportation security officer on a full-time basis.
In a July 9, 2014 letter, appellant requested that OWCP expand her accepted condition to
include a left shoulder condition. She stated that she injured her left shoulder while
compensating for her right shoulder. Appellant indicated that she was forced to work with her
shoulder condition as OWCP did not authorize pain as a viable reason to be off work. She
indicated that her physician, Dr. Carol Orr, a family practitioner, was aware of her condition and
that she had a magnetic resonance imaging (MRI) scan of her left shoulder.4
On November 9, 2012 a nurse practitioner noted that appellant reported right shoulder
pain that radiated down her arm having injured it at work the previous night while lifting heavy
luggage onto the conveyer belt.
In a November 15, 2012 medical report, Dr. Orr diagnosed “sprain shoulder, rotator cuff,
impingement syndrome of shoulder, and muscle spasm” as a result of the November 8, 2012
work injury.
A November 20, 2012 right shoulder x-ray report diagnosed right shoulder impingement.
An MRI scan performed on December 11, 2012 of the right shoulder showed
impingement of the supraspinatus tendon with secondary degenerative tendinosis and a tiny
bursal surface tear.
Dr. Orr noted, in a December 17, 2012 report, that appellant sustained a right shoulder
injury on November 8, 2012 and had a history of left shoulder impingement. She reported that
appellant was concerned that the recent lifting injury may have aggravated her earlier left
shoulder impingement condition as she was lifting the bag with both arms. Dr. Orr noted that
appellant had pain in the left shoulder with range of motion.
4

Under File No. xxxxxx721, date of injury September 10, 2010, appellant has an accepted left shoulder rotator
cuff sprain. OWCP combined the case records involving appellant’s bilateral upper extremity injuries and
designated File No. xxxxxx300 as the master file.

2

Physical therapy reports from December 6, 13, and 20, 2012 and January 3, 10, 17, 24,
and 31, February 15, 20, and 27, and March 5, 2013 showed near full range of motion in the right
shoulder with no tenderness.
In a January 17, 2013 report, Dr. Orr reported a history of right shoulder injury on
November 8, 2012 and a previous left shoulder impingement injury. She noted that appellant
was compensating for her right shoulder and had increased pain in the left shoulder.
The record substantiates that appellant returned to modified full-time work on
February 4, 2013.
In a February 8, 2013 report, Dr. Sydney Smith, an orthopedic surgeon, recommended
right shoulder surgery.
Dr. Orr again noted, in a February 19, 2013 report, that appellant stayed home due to
right shoulder pain on February 13, 15, and 18, 2013. She also left work early on February 12,
2013 due to right shoulder pain.
A March 21, 2013 MRI scan of the left shoulder showed partial tears of the suprapinatus
tendon and rotator interval and a superior glenohumerol ligament tear.
On March 22, 2013 appellant underwent a right shoulder subacromial decompression
surgery.
In a March 28, 2013 report, Dr. Orr reported on appellant’s right shoulder condition
postsurgery. She also noted that appellant continued to have pain in her left shoulder post MRI
scan of the left shoulder with some bruising in front of the left shoulder post arthrogram.
In an April 29, 2013 report, Dr. Orr noted that appellant continued to have pain in the left
shoulder post MRI scan. She reported reduced range of motion of the left shoulder with
weakness. An April 29, 2013 physical therapy report indicated that appellant had full external
and internal rotation of the right shoulder.
Dr. Smith noted on May 2, 2013 that appellant reported injuring her left shoulder at work
when lifting luggage on September 10, 2010. He diagnosed left shoulder impingement/cuff
tendinosis, as seen on MRI scan.
In a June 6, 2013 report, Dr. Orr reported that appellant’s right shoulder pain had
decreased postsurgery, and with physical therapy. She indicated that most of appellant’s pain
was in her left shoulder. Dr. Orr noted that appellant believed she had also injured her left
shoulder on November 8, 2012 and that symptoms increased on that side after that date.
Appellant maintained that left shoulder pain never went away fully from the left shoulder injury
of September 10, 2010 even though she was working full duty. She also indicated that OWCP
was combining both shoulder claims.
Appellant returned to full-time light-duty work on June 10, 2013.
In a July 8, 2013 report, Dr. Orr indicated that appellant sustained a right shoulder injury
on November 8, 2012 and that her left shoulder was also injured as she was lifting with the left
3

shoulder as well. Postarthroscopy of the right shoulder was doing well. Dr. Orr recommended
that physical therapy be approved by OWCP for both shoulders. She diagnosed left shoulder
reoccurrence/aggravation of preexisting impingement/supraspinatus tear and superior
glenohumeral ligament tear.
In August 20 and September 12, 2013 reports, Dr. Orr noted that appellant sustained a
right shoulder injury on November 8, 2012 and that her left shoulder was also injured at that time
as she was also lifting with the left shoulder. She reported that appellant’s left shoulder
dysfunction increased last week on August 17, 2013 while at work lifting empty bins. Dr. Orr
opined that appellant had left shoulder recurrence/aggravation of preexisting impingement/
supraspinatous tear and superior glenohumeral ligament tear found on MRI scan. She also noted
that there were objective findings on MRI scan of the left shoulder, as well as loss of
function/range of motion, loss of strength, and swelling, after November 8, 2012.
On June 17, 2014 Dr. Orr took appellant off work from June 17 through 18, 2014 due to
her left rotator cuff syndrome, right shoulder pain for more than three months, and impingement
syndrome of left shoulder and left glenoid labrum tear.
In a letter dated October 14, 2014, OWCP noted the issue as whether a consequential left
shoulder condition should be accepted from the date of injury of November 8, 2012 to
August 16, 2013. It explained that the event of lifting empty bins at work on August 17, 2013
constituted an intervening event after the date of the original injury (November 8, 2012) which
would possibly be a new injury beginning on August 17, 2013, for which appellant may want to
file a new left shoulder claim. OWCP advised that the current claim was accepted for right
shoulder and upper arm sprains and other affections of the right shoulder not elsewhere
classified. It noted that the evidence of record was insufficient to expand the accepted conditions
to include a left shoulder condition, as there was no narrative medical report explaining how
appellant suffered a consequential left shoulder injury. Appellant was requested to provide
additional factual and medical information, within 30 days, including a narrative medical report
from her physician which explained how her accepted right shoulder injury caused the left
shoulder injury.
In October 4, 2013 and January 27, June 17, September 19 and October 23, 2014 reports,
Dr. Orr explained that appellant sustained a right shoulder injury on November 8, 2012 and that
her left shoulder was also injured at that time as she was lifting with both shoulders.
In her October 23, 2014 report, Dr. Orr indicated that appellant returned to modified duty
on February 4, 2013, and on that same day she was compensating for her right shoulder with her
left shoulder, which caused the left shoulder condition. She advised that the left shoulder should
fall under the November 8, 2012 injury. Dr. Orr noted that the MRI scan of the left shoulder
showed supraspinatus tear and superior glenohumeral ligament tear and that appellant had a
preexisting impingement of the left shoulder that had never been surgically treated, which caused
her to be at greater risk for development of the left shoulder injury on February 4, 2013 when she
returned to work. She indicated that the left shoulder could be claimed as a new injury on
February 4, 2013, but requested that a consequential left shoulder condition be accepted under
the November 8, 2012 injury as appellant was compensating for the right shoulder injury.

4

In her January 27, 2014 report, Dr. Orr opined that appellant was compensating for left
shoulder pain while recuperating from right shoulder surgery which prolonged recovery of the
right shoulder condition. She explained that the preexisting impingement from her prior left
shoulder injury was aggravated by the November 8, 2012 injury. Dr. Orr noted that the
supraspinatus tear and superior glenohumeral ligament tear of the left shoulder found on MRI
scan were caused by this new injury. She presented positive examination findings for the left
shoulder, but noted that OWCP had denied surgery of the left shoulder. Multiple treatment notes
were also submitted from Dr. Orr.
By decision dated August 20, 2015, OWCP denied appellant’s claim finding insufficient
medical evidence to establish a consequential left shoulder condition causally related to her
accepted right shoulder condition. It specifically found that while appellant’s treating physician
opined that she sustained the left shoulder injury concurrently with the right shoulder injury on
November 8, 2012, no mention was made of a left shoulder injury until June 6, 2013.
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.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components which 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 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.8
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional misconduct.9 Thus, a subsequent
5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). 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 factor(s). Id.
8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Mary Poller, 55 ECAB 483, 487 (2004); 1 Lex K. Larson, Larson’s Workers’ Compensation Law § 10-1
(Matthew Bender, Rev. Ed. June 2016).

5

injury, be it 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.10
ANALYSIS
Appellant alleges that she sustained a consequential left shoulder condition as a result of
her accepted November 8, 2012 right shoulder injury. She has also alleged that she injured her
left shoulder on November 8, 2012 at the same time she injured her right shoulder. OWCP
denied appellant’s left shoulder claim finding insufficient medical evidence to establish that her
left shoulder was injured on November 8, 2012.
The Board finds that appellant has not established that her left shoulder condition was
caused or aggravated by the November 8, 2012 lifting event or that she sustained a consequential
left shoulder injury.
A series of medical reports from Dr. Orr were received. In her December 17, 2012
report, Dr. Orr noted that appellant had a history of left shoulder impingement and that appellant
was concerned that her November 8, 2012 lifting injury may have aggravated the previous left
shoulder condition because she was lifting a bag with both arms. She noted that appellant had
pain in the left shoulder with range of motion. The Board finds that pain is a symptom and not a
compensable medical diagnosis.11 Dr. Orr failed to explain with medical rationale and based
upon contemporaneous medical evidence, that appellant sustained a left shoulder injury on
November 8, 2012.12
While subsequent evidence from Dr. Orr appears to support that appellant sustained a
consequential left shoulder condition on February 4, 2013 when she returned to modified duty,
her reports are not rationalized. In her January 27 and October 23, 2014 reports, she explained
that, when appellant retuned to modified duty on February 4, 2013, she was compensating for her
right shoulder with her left shoulder, which caused the left shoulder condition. Dr. Orr noted
that the MRI scan of the left shoulder showed a supraspinatus tear and a superior glenohumeral
ligament tear and that appellant had a preexisting impingement of the left shoulder, which caused
her to be at greater risk for development of the left shoulder injury on February 4, 2013. She
explained in her 2014 reports that the aggravation of the preexisting impingement made
appellant more likely to cause additional injury to the left shoulder. Dr. Orr further stated that
the supraspinatus tear and superior glenohumeral ligament tear found on MRI scan was caused
by this injury. However, she failed to provide a rationalized medical opinion, supported by
objective evidence, explaining how the supraspinatus and superior glenohumeral ligament tears
found on MRI scan were caused by the November 8, 2012 left shoulder injury or developed after
appellant returned to modified duty on February 4, 2013. Rather, Dr. Orr generally concluded
that appellant’s preexisting condition was aggravated, which made her more likely to cause
injury to her left shoulder. The Board has found that medical evidence which states a

10

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

11

V.S., Docket No. 14-2028 (issued June 3, 2015).

12

See E.L., Docket No. 12-791 (issued August 29, 2012).

6

conclusion, but does not offer any rationalized medical explanation is of limited probative
value.13
Accordingly, the Board finds that appellant has not submitted sufficient medical evidence
to establish that her left shoulder condition either arose as a direct result of the November 8,
2012 employment injury or as a consequence of her return to modified duty on February 4, 2013.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her left
shoulder condition was causally related to her accepted November 8, 2012 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Chelsea, MA, Employer
__________________________________________

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Appearances:
John L. DeGeneres, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0109
Issued: June 25, 2020

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 October 16, 2019 appellant, through counsel, filed a timely appeal from an April 25,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction 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 his burden of proof to establish a right hip condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On August 16, 2016 appellant, then a 48-year-old federal air marshal, filed an occupational
disease claim (Form CA-2) alleging that he developed right hip osteoarthritis as a result of his
federal employment. He noted that he first became aware of his condition and realized its
relationship to his federal employment on June 6, 2016. On the reverse side of the claim form, the
employing establishment indicated that appellant continued to perform his normal work duties.
In an attached statement, appellant related that he had worked for the employing
establishment since June 2002. He indicated that his training involved routine running,
calisthenics, aerobics training, sprints and shuttle runs, pushups, sit-ups, and various free-weight
and machine-oriented exercises. Appellant also described the defensive tactics and firearms
training that he frequently underwent and explained that these techniques placed a remarkable
amount of stress on his knees, shoulders, and hips. He related that he walked at least four to six
miles per day through airports, while carrying over 50 pounds of luggage and gear; walked up and
down stairs and down narrow aircraft aisles; sat, stood, and twisted repeatedly from airline
passenger seats. Appellant reported that he first noticed his right hip pain in October 2014 while
deployed for work in Paris, France and that subsequent diagnostic testing revealed arthritis in his
right hip. He alleged that sitting for long periods of time in the airline seats, twisting, and walking
down the aisle and from terminal to terminal worsened his hip pain.
In a May 13, 2015 surgical consultation note, Dr. Eugene E. Berg, a Board-certified
orthopedic surgeon, indicated that appellant had a history of right groin pain for the prior eight or
nine months. He indicated that a right hip x-ray examination report demonstrated evidence of
osteoarthritis and diagnosed right hip osteoarthritis. Dr. Berg also completed an employing
establishment physical restriction form dated August 26, 2016.
In a May 29, 2015 examination note, Harry Morse, a certified nurse anesthetist, recounted
appellant’s complaints of chronic right hip and low back pain. He reviewed appellant’s history,
conducted an examination, and diagnosed sacral iliac joint dysfunction and chronic low back pain.
In a June 3, 2015 report, Dr. Thomas Marks, a Board-certified orthopedic surgeon,
recounted appellant’s complaints of right hip and left heel pain. Upon examination of appellant’s
right hip, he observed tenderness to palpation over the abductor and greater trochanteric bursa and
limited range of motion due to secondary pain. Dr. Marks diagnosed left plantar fasciitis and right
hip osteoarthritis.
Appellant also submitted a July 26, 2015 letter by Dr. Justin W. Kung, a Board-certified
diagnostic radiologist, who indicated that x-ray examination reports of appellant’s bilateral knees
and right hip taken on March 26 and May 21, 2015, respectively, demonstrated findings of
degenerative change with osteophyte formation, subchondral sclerosis and cystic change. OWCP
also received the March 26 and May 21, 2015 x-ray examination reports.

2

In a June 9, 2016 narrative report, Dr. David C. Morley, Jr., a Board-certified orthopedic
surgeon, recounted that he examined appellant for injuries sustained during the course of his career
working as a federal air marshal. He indicated that appellant’s job and maintenance of his skills
involved routine running, calisthenics and aerobics training, lower extremity repetitive impact
loading activities, tactical training, joint manipulation, full contact fighting with protective gear,
and significant standing and walking for many miles daily. Upon physical examination,
Dr. Morley observed positive Trendelenburg sign and markedly positive Stinchfield sign on the
right side. Range of motion testing of the right hip revealed flexion to 95 degrees, extension to 0
degrees, internal rotation to 5 degrees, external rotation to 10 degrees, adduction to 10 degrees,
and abduction to 15 degrees. Dr. Morley described appellant’s employment duties and opined that
these heavy, physical, and repetitive impact loading lower extremity activities caused and
worsened, at the very least, his degenerative right hip condition. He explained that the repetitive
heavy physical demands placed on appellant’s hip over a period of years, as described above,
resulted in increased stresses through his right hip contributing to his arthritic condition.
In an October 19, 2016 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of medical and factual
evidence necessary to support his claim and provide a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the requested information. A similar letter of even date
requested additional information from the employing establishment.
The employing establishment submitted an administrative medical review report dated
November 9, 2016 by Dr. Mary Nadratowki, a Board-certified internist, who outlined a history of
medical treatment that appellant had received from its health unit from 1990 to 2016.
Dr. Nadratowki noted that appellant’s most recent diagnosis was right hip avascular necrosis
(AVN) and suggested that it was likely he had a subtle organic femoral head misalignment. She
opined that the exact etiology of his AVN was unknown.
By decision dated November 18, 2016, OWCP denied appellant’s occupational disease
claim. It accepted his duties as a federal air marshal as described and diagnosis of a right hip
condition, but denied his claim finding that the medical evidence of record failed to establish that
his medical condition was causally related to the accepted employment factors.
OWCP subsequently received a letter dated November 17, 2016, wherein counsel indicated
that he was submitting additional medical records that were not acknowledged as received by
OWCP in its October 19, 2016 development letter. Counsel also asserted that Dr. Morley’s June 9,
2016 medical report constituted sufficient documentation that appellant sustained a right hip injury
due to his federal employment.
Appellant submitted his completed questionnaire dated November 17, 2016. He explained
that his hobbies of trap shooting and fishing were seasonal and occurred approximately once or
twice a month during the period of time. Appellant also noted that he participated in road cycling
from approximately 2011 through 2014 on average of 12 times per year. He related that he stopped
these activities because of his hip pain. Appellant listed the medical reports that he had submitted
and explained that he did not seek medical treatment for his right hip until March 2015 so he did
not have medical reports dated from 2014 or prior. He also provided an official position
description.

3

On December 8, 2016 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on March 22, 2017.
OWCP received a March 13, 2017 memorandum by counsel who asserted that OWCP
would not have denied appellant’s claim had it received his completed questionnaire, which he
had completed on November 17, 2016. Counsel also clarified that appellant was not alleging a
direct causation, but that his employment contributed to and worsened his preexisting right hip
osteoarthritis.
In a December 1, 2016 supplemental report, Dr. Morley indicated that he had reviewed
additional medical documentation since his June 9, 2016 report and opined that appellant’s
ongoing right hip osteoarthritis symptoms continued to be hastened by the physical demands of
his federal employment. He explained that the repetitive, high impact loading activities of
appellant’s job had placed significant loads on his lower extremities and that such activities on a
regular basis resulted in articular cartilage damage to the hip joint, which progressively culminated
in osteoarthritis.
By decision dated June 6, 2017, OWCP’s hearing representative set aside the
November 18, 2016 decision and remanded the case for further medical development noting that
OWCP should compose a statement of facts (SOAF) and refer appellant to a second opinion
physician.
In a June 12, 2017 letter, counsel informed OWCP that he was enclosing the additional
medical records that were originally filed in response to the development letter. Appellant
submitted VA medical center progress notes dated May 13, 2015 to November 1, 2016, which
indicated that appellant was treated for complaints of right groin pain, right hip arthritis, neck and
knee problems, and lower back and neck degenerative joint disease. The progress notes reported
diagnoses of advanced right hip osteoarthritis, femoroacetabular impingement (FAI), and right hip
AVN. In an October 6, 2016 report, Dr. Samuel H. Poon, a Board-certified internist and
rheumatologist, related that appellant’s right hip osteoarthritis was “most likely due” to appellant’s
diagnosis of FAI.
OWCP also received additional diagnostic testing reports. A September 23, 2016 right hip
diagnostic testing report revealed normal bone mineral content. An October 5, 2016 diagnostic
report of the pelvis was suggestive of either septic arthritis or avascular necrosis. An October 5,
2016 cervical magnetic resonance imaging (MRI) scan report revealed degenerative disc disease
of C5-7 with left bony neural foramen, narrowing C6-7, and mild reversal of the usual cervical
lordosis. An October 5, 2016 right hip MRI scan report demonstrated significant interval
worsening of the right hip.
OWCP subsequently referred appellant’s claim, along with a SOAF and a copy of the
record, to Dr. Kenneth Polivy, a Board-certified orthopedic surgeon, for a second opinion
examination to determine whether appellant sustained a diagnosed medical condition caused,
aggravated, or accelerated by the factors of his federal employment. In an April 18, 2018 report,
Dr. Polivy recounted that appellant had worked as a federal air marshal for 15 years and indicated
that he had reviewed appellant’s job description. He related appellant’s current complaints of
numbness and occasional pain in the right hip. Upon physical examination, Dr. Polivy observed

4

that appellant could stand with level hips and shoulders and was able to heel walk and toe walk
without difficulty. Examination of appellant’s right hip revealed normal range of motion and
decrease in sensation in the right lateral trochanteric region. Dr. Polivy opined that appellant’s
right hip AVN and subsequent osteoarthritis were not medically connected to the factors of
employment as described in the SOAF. He explained that there were no peer reviewed studies to
support an increased incidence of AVN or osteoarthritis in individuals who were active in
employment activities. Dr. Polivy reported that appellant’s activities, either through his work
schedule, reported lifting activities, or exercise activities, did not cause the development of his
osteoarthritis.
OWCP determined that a conflict in the medical evidence existed between Dr. Morley,
appellant’s treating physician, and Dr. Polivy, OWCP’s second opinion physician, regarding
whether appellant’s diagnosed right hip condition was caused, aggravated, or precipitated by
factors of his federal employment. It referred appellant to Dr. Robert Pennell, a Board-certified
orthopedic surgeon, for an impartial medical examination to resolve the conflict.
In a July 9, 2018 letter, counsel noted his objection to the appointment of Dr. Pennell as a
referee physician. First, he asserted that Dr. Pennell had a documented bias against injured federal
workers. Second, counsel argued that OWCP failed to adhere to its rotating selection procedures
and pointed out that Dr. Pennell’s office was located more than 52 miles from appellant’s
residence. He submitted eight pages from a deposition of Dr. Pennell from an altogether different
legal proceeding. Counsel also provided a print-out of driving directions from appellant’s
residence to Dr. Pennell’s office.
In a July 10, 2018 report, Dr. Pennell indicated that he had reviewed the SOAF and the
entire case file. He noted that appellant had worked for the employing establishment from
May 2002 until September 6, 2017 when he was terminated from employment due to an inability
to perform his duties. Dr. Pennell discussed appellant’s right hip x-rays on May 13 and 15, 2015
and August 23, 2016 and explained that the diagnostic imaging did not show evidence of AVN.
He recounted that appellant currently complained of continuing symptoms and limitations in his
right hip and right groin pain, numbness, and paresthesias.
Upon physical examination, Dr. Pennell observed normal gait with a very slight crouch.
He reported that range of motion of appellant’s right hip demonstrated 100 degrees flexion, 30
degrees abduction, 10 degrees adduction, 30 degrees internal rotation, and 25 degrees external
rotation. Dr. Pennell also observed tenderness in the center of the right groin directly over the hip
joint. He diagnosed primary osteoarthritis of the right hip joint and status post right total hip
replacement with persistent right hip joint pain and tenderness. Dr. Pennell noted his disagreement
with Dr. Morley’s opinion that appellant’s right hip osteoarthritis was causally related to his
employment. He explained that Dr. Morley’s opinion “would be contradicted by the fact that
[appellant] had a completely normal left hip joint.” Dr. Pennell referenced medical literature and
noted that it reported that there was overall insufficient evidence to assign evidence of causation
to any employment. He asserted that “there was no scientific evidence that strenuous work, such
as that performed by [appellant] would cause or aggravate osteoarthritis of the hip joint or cause
or aggravate avascular necrosis of the head of the femur.”

5

OWCP received a September 13, 2017 letter, which indicated that appellant was terminated
from employment due to medical inability to perform the essential functions of his position.
In a September 7, 2018 de novo decision, OWCP again denied appellant’s occupational
disease claim finding that was insufficient medical evidence to establish that his right hip condition
was causally related to the accepted factors of employment. It found that the special weight of the
medical evidence rested with the July 10, 2018 report of Dr. Pennell, OWCP’s impartial medical
examiner.
On September 24, 2018 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on February 12, 2019.
OWCP subsequently received a February 12, 2019 memorandum by counsel. Counsel
again asserted that appellant was not claiming direct causation between his right hip osteoarthritis
and his employment, but that his work duties contributed to the “substantial and significant
increase in the osteoarthritic disease.” He alleged that Dr. Pennell did not provide sufficient
medical rationale to support his conclusion that appellant’s employment did not contribute to or
aggravate appellant’s right hip condition.
Appellant also provided progress notes dated November 22, 2016 to June 22, 2017 by
Dr. Ricardo A. Gonzales, a Board-certified orthopedic surgeon, who recounted appellant’s
complaints of right hip pain with an onset of symptoms in 2014 without incident or trauma.
Dr. Gonzales conducted an examination of appellant’s right hip and diagnosed osteonecrosis of
the right hip. He indicated that he had informed appellant that in approximately 60 percent of
patients who developed osteonecrosis, they were not able to identify a causative factor.
By decision dated April 25, 2019, an OWCP hearing representative affirmed the
September 7, 2018 decision. She found that the special weight of the medical evidence continued
to rest with the July 10, 2018 impartial medical report of Dr. Pennell who opined that appellant’s
federal employment did not cause or contribute to appellant’s right hip osteoarthritis.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,4 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

3

Id.

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

6

employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 The opinion of the physician must be based
on a complete factual and medical background of the employee, 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 specific employment factors identified by the employee.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
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 an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.11 This is called an impartial medical examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.12 For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal
weight and rationale.”13 When there exists opposing medical reports of virtually equal weight and
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345, 352 (1989).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

11

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
12

20 C.F.R. § 10.321.

13

J.K., Docket No. 19-1009 (issued October 22, 2019); Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

7

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.14 Where the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.15
ANALYSIS
The Board finds that this case is not in posture for a decision.
OWCP improperly determined that a conflict in medical opinion evidence existed between
Dr. Morley, appellant’s treating physician, and Dr. Polivy, OWCP’s second opinion examiner,
regarding whether appellant’s right hip condition was causally related to or aggravated by the
accepted employment factors. In reports dated June 9 and December 1, 2016, Dr. Morley opined
that the lower extremity repetitive impact loading activities of appellant’s employment caused and
worsened, at the very least, his degenerative right hip condition. In an April 18, 2018 report,
Dr. Polivy noted his disagreement with Dr. Morley’s opinion regarding causal relationship. He
explained that there were no scientific studies to support an increased incidence of AVN or
osteoarthritis in individuals who were active in employment activities.
The Board finds that Dr. Polivy’s April 18, 2018 report lacks sufficient medical rationale
and is not of equal weight to Dr. Morley’s reports as OWCP had determined. In determining the
probative value of medical evidence, the Board considers such factors as the opportunity for and
thoroughness of examination performed by the physician, the accuracy and completeness of the
physician’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the physician’s opinion.16 In this case, Dr. Polivy merely
referenced some medical literature and provided a general conclusion regarding causal
relationship. The Board has held that medical evidence that states a condition but does not offer a
rationalized medical explanation regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.17 The Board thus finds that this report is
insufficient to create a conflict in medical opinion with Dr. Morley.18 As there was no conflict in

14

Id.; Gloria J. Godfrey, 52 ECAB 486 (2001).

15
K.S., Docket No. 19-0082 (issued July 19, 2019); V.G., 59 ECAB 635 (2008); Gary R. Sieber, 57 ECAB 414,
416 (2006).
16

C.D., Docket No. 17-1623 (issued February 20, 2018); James T. Johnson, 39 ECAB 1252, 1256 (1988).

17

D.H., Docket No. 17-1913 (issued December 13, 2018); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
18

See supra note 11.

8

medical evidence between Dr. Morley and Dr. Polivy pursuant to 5 U.S.C. § 8123(a), the referral
to Dr. Pennell was for second opinion examination.19
In a July 10, 2018 report, Dr. Pennell reviewed the medical evidence of record and provided
examination findings related to appellant’s right hip. He noted his disagreement with Dr. Morley’s
opinion that appellant’s right hip osteoarthritis was causally related to his employment.
Dr. Pennell noted that appellant had a “completely normal left hip joint.” He also indicated that
there was no scientific evidence that strenuous work, such as that performed by appellant would
cause or aggravate osteoarthritis of the hip joint.
The Board finds that Dr. Pennell did not provide adequate medical rationale to explain the
basis for his conclusion that appellant’s employment duties did not cause or aggravate appellant’s
right hip osteoarthritis.20 Dr. Pennell simply noted that appellant’s left hip examination was
normal and referenced scientific studies. He did not explain how appellant’s right hip
osteoarthritic hip condition was solely due to nonoccupational factors.21 The Board has found that
an employee is not required to prove a significant contribution of factors of employment to a
condition for the purpose of establishing causal relationship.22 Any contribution to appellant’s
condition by the accepted employment factors would render his condition compensable.23
Accordingly, the Board finds that Dr. Pennell’s opinion is of insufficient probative value to carry
the weight of the medical evidence, and the case must be remanded for further development.24
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence.25 It has an obligation to see that justice is done.26 Once OWCP
19

See S.M., Docket No. 19-0397 (issued August 7, 2019) (the Board found that at the time of the referral for an
impartial medical examination there was no conflict in medical opinion evidence; therefore, the referral was for a
second opinion examination); see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as
there was no conflict in medical opinion evidence, the report of the physician designated as the impartial medical
examiner was not afforded the special weight of the evidence but was considered for its own intrinsic value as he was
a second opinion specialist).
20

See T.S., Docket No. 18-1702 (issued October 4, 2019).

21

See F.K., Docket No. 19-1804 (issued April 27, 2020).

22

C.H., Docket No. 19-1315 (issued March 16, 2020); J.L., Docket No. 17-0782 (issued August 7, 2017); H.C.,
Docket No. 16-0740 (issued June 22, 2016).
23

See J.B., Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 2017);
Beth C. Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to
a diagnosed condition to establish causal relationship).
24

Supra note 19.

25
See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB
699, 707 (1985).
26
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).

9

undertakes to develop the medical evidence further, it has the responsibility to do so in a manner
that will resolve the relevant issues in the case.27 On remand it shall obtain a supplemental opinion
from its second opinion physician, Dr. Pennell, which contains adequate medical rationale to
resolve the issue of whether appellant sustained a right hip condition causally related to the
accepted factors of his federal employment. If Dr. Pennell is unavailable or unwilling to provide
a supplemental opinion, OWCP shall refer appellant, together with a SOAF and a list of specific
questions, to a second opinion physician in the appropriate field of medicine to resolve the issue.
Following this and any other further development as deemed necessary, OWCP shall issue a de
novo decision on appellant’s occupational disease claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT April 25, 2019 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: June 25, 2020
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

27

B.W., Docket No. 19-0965 (issued December 3, 2019); T.C., Docket No. 17-1906 (issued January 10, 2018).

10