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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0143
Issued: September 5, 2019

Case Submitted on the Record

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

JURISDICTION
On October 25, 2018 appellant, through counsel, filed a timely appeal from a June 5, 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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the June 5, 2018 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

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability for the period May 15 to September 18, 2016 causally related to her accepted January 25,
2013 employment injury; (2) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective April 20, 2017; and (3) whether appellant
has met her burden of proof to establish continuing disability or residuals on and after April 20,
2017, causally related to the accepted January 25, 2013 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 25, 2013 appellant, then a 37-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 25, 2013 she strained her neck and back when she
was involved in a motor vehicle accident while in the performance of duty. She stopped work on
the date of injury. OWCP accepted appellant’s claim for neck sprain. It paid continuation of pay
(COP) until March 11, 2013 and paid wage-loss compensation on the supplemental rolls, effective
March 12, 2013. On May 16, 2013 appellant returned to part-time light-duty work.5
Appellant received medical treatment from Dr. Scott Fried, an osteopath specializing in
orthopedic hand surgery and pain management. In a report dated May 16, 2016, Dr. Fried related
that appellant’s neck symptoms had been “flared” for the past two weeks and had spread to the
shoulders. Upon examination of appellant’s cervical spine, he reported left-sided neck pain with
lateral bending and limited flexion. Dr. Fried also noted severe spasm and tenderness across
appellant’s left trapezius and tightness with some tenderness across the right trapezius.
Neurological examination demonstrated positive Phalen’s, Tinel’s, and compression testing.
Dr. Fried diagnosed cervical strain and sprain, disc bulges at C4-5, C5-6, and C6-7 with
radiculopathy, and right shoulder rotator cuff strain and sprain. He completed a disability
certificate and noted: “[Appellant] is currently flared. We are bringing her out of work to get
things calmed down.”

4

Docket No. 15-0567 (issued April 27, 2015). In its previous decision, the Board reversed an October 7, 2014
hearing decision which affirmed the termination of appellant’s wage-loss compensation and medical benefits, effective
January 13, 2014, based on the October 9, 2013 report of Dr. Stuart Trager, an OWCP impartial medical examiner
and Board-certified orthopedic surgeon. The Board found that Dr. Trager’s report was insufficiently rationalized to
represent the special weight of the medical evidence. OWCP reinstated appellant’s medical coverage, but because
she was not on the periodic rolls for wage-loss compensation, it did not pay wage-loss compensation benefits until
she submitted CA-7 forms in October 2015.
5

In a duty status report (Form CA-7) dated April 1, 2013, Dr. Gautam Kothari, Board-certified in physical medicine
and rehabilitation, authorized appellant to return to part-time modified-duty work with restrictions of no lifting,
pushing, or pulling more than 20 pounds.

2

On May 26, 2016 OWCP referred appellant, along with an updated statement of accepted
facts (SOAF),6 a set of questions, and the medical record to Dr. Noubar A. Didizian, a Boardcertified orthopedic surgeon, for a second opinion examination regarding the status of her
January 25, 2013 employment injury.
Dr. Fried continued to treat appellant and provided medical reports dated May 26 and
June 9, 2016. He related that her symptoms continued despite rest from being off work and home
modalities. Dr. Fried provided examination findings and noted diagnoses of cervical strain and
sprain, disc bulges at C4-5, C5-6, and C6-7 with radiculopathy, and right shoulder rotator cuff
strain and sprain. He completed disability certificates which indicated that appellant “remained
currently flared” and should remain off work until further notice.
Appellant began to receive medical treatment from Dr. Steven J. Valentino, an osteopath
specializing in orthopedic surgery. In a report dated June 8, 2016, Dr. Valentino related
appellant’s complaints of bilateral neck pain localized C4 through C7. He indicated that appellant
was working in a modified capacity, but had a “flare up of symptoms” and had been off work since
May 2016. Dr. Valentino reported examination findings of limited range of motion of appellant’s
cervical spine and significant spasm upon palpation. He diagnosed other cervical disc
degeneration, mid-cervical region, cervical pain, cervical strain, and pain of cervical facet joint.
On June 20, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for total
disability for the period May 14 to 27, 2016. On the time analysis form (Form CA-7a), she
requested wage-loss compensation for total disability beginning May 16, 2016. Appellant
indicated that her reason for using leave was “Restricted Duty.” She filed additional claims for
wage-loss compensation (Forms CA-7) for the period May 28 through September 16, 2016.
In a June 27, 2016 development letter, OWCP advised appellant of the type of evidence
needed to establish her wage-loss compensation claim. It afforded her 30 days to submit the
necessary evidence.
In a June 29, 2016 second opinion report, Dr. Didizian described appellant’s history of
injury and detailed the findings of the physical examination. He reported that palpation of
appellant’s trapezii showed no fibrosis or myofascial defects. Spurling’s test was negative.
Dr. Didizian opined that there was no evidence of an ongoing cervical sprain or other additional
conditions causally related to the January 25, 2013 employment injury. He authorized appellant
to return to regular duty.
In reports dated July 11 and August 16, 2016, Dr. Fried related appellant’s complaints of
continued neck symptoms. He detailed findings on examination of localized pain and continued
spasms of appellant’s neck. Dr. Fried diagnosed cervical strain and sprain, disc bulges at C4-5,
C5-6, and C6-7 with radiculopathy, right shoulder rotator cuff strain and sprain, cervical
radiculopathy, and bilateral radial neuropathy. He reported that appellant was still “symptomatic

6
The updated SOAF noted that appellant’s current claim was accepted for neck sprain. It also related that she had
a previous claim under OWCP File No. xxxxxx002, which was accepted for right rotator cuff tendinitis and right
bicipital tenosynovitis. The SOAF also indicated that appellant had a subsequent claim, filed on January 20, 2015,
under OWCP File No. xxxxxx829, which was accepted for lower back sprain.

3

and limited and things are still flared.” Dr. Fried explained that he wanted to wait to return
appellant to work until she was more stable.
Appellant submitted additional reports by Dr. Valentino. In reports dated August 17 and
September 21, 2016, Dr. Valentino related appellant’s complaints of bilateral neck pain localized
C4 through C7. Examination of appellant’s cervical spine showed significantly limited range of
motion and spasm, facet synovitis, and effusion upon palpation. Dr. Valentino diagnosed other
cervical disc degeneration, cervical pain, cervical strain, and pain of cervical facet joint.
On September 13, 2016 appellant underwent a work capacity evaluation test by Albert
Wong, a registered occupational therapist, who indicated that appellant could perform part-time
sedentary work with light-duty limitations.
On September 14, 2016 OWCP determined that a conflict in medical opinion existed
between Dr. Didizian, OWCP’s referral physician, and Drs. Valentino and Fried, appellant’s
treating physicians, regarding whether the January 25, 2013 employment injury aggravated a
preexisting condition resulting in cervical radiculopathy, whether appellant required continued
treatment for cervical radiculopathy due to ongoing residuals, and whether she had ongoing total
or partial disability due to her cervical condition. It referred appellant to Dr. William H. Simon, a
Board-certified orthopedic surgeon, for an impartial medical examination in order to resolve the
conflict.
In a November 7, 2016 report, Dr. Simon noted his review of appellant’s medical records,
including the SOAF, and described the January 25, 2013 employment injury. He related
appellant’s current complaints of pain in the back of her neck and head radiating to her left
shoulder. Upon examination of appellant’s cervical spine, Dr. Simon observed no tenderness in
the midline from the cervical spine to the lumbosacral spine. He noted tenderness upon palpation
of the left trapezius muscle and some mild firmness. Range of motion of appellant’s cervical spine
showed 45 degrees to the right and left with some pain in the left shoulder, lateral bending to 30
degrees to the right and left, extension to 30 degrees, and flexion to 45 degrees. Dr. Simon
diagnosed degenerative disc disease and degenerative joint disease of the cervical spine and mild
frozen left shoulder (adhesive capsulitis). He opined that the medical evidence in the record did
not support a diagnosis of cervical radiculopathy. Dr. Simon explained that none of the multiple
electromyography (EMG) studies showed evidence of cervical radiculopathy7 and that appellant’s
neurologic examination was normal.
Dr. Simon opined that appellant’s accepted cervical sprain condition had completely
resolved, but that she continued to suffer effects of her underlying degenerative joint disease of
the cervical spine. He indicated that a cervical sprain was a soft tissue injury, which would heal
in a matter of a few weeks to several months with rest and mild rehabilitation. Dr. Simon explained
that appellant needed additional time for rehabilitation because of the underlying preexistent
cervical degenerative disc condition and concluded that by six months (July 2013), she would have
fully rehabilitated from her cervical sprain injury. He reported that she was no longer disabled due
to the January 25, 2013 employment injury because the cervical sprain injury had resolved.
7
A December 2, 2013 EMG and nerve conduction velocity (NCV) study by Dr. Joseph Moeller, a Board-certified
neurologist, showed normal motor and sensory studies of the bilateral median, radial, and ulnar nerves. Dr. Moeller
indicated that he did not find electrophysiological evidence of a neuropathy, myopathy, plexopathy, or radiculopathy
affecting the upper extremities.

4

Dr. Simon further noted that appellant continued to suffer from her preexisting degenerative disc
and joint disease and would require further treatment. He indicated that appellant could likely
return to light-duty work after additional treatment for her “flare-up” of her underlying cervical
degenerative disc disease.
On January 10, 2017 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits, finding that she no longer had residuals or disability due to her January 25,
2013 employment injury. It found that the special weight of medical evidence rested with
Dr. Simon’s November 7, 2016 report. OWCP afforded appellant 30 days to submit additional
evidence and argument if she disagreed with the proposed termination.
By separate decision of even date, OWCP denied wage-loss compensation for the period
May 30, 2015 through September 18, 2016. It found that the medical evidence submitted was
insufficient to establish that appellant’s inability to work during the claimed period was causally
related her accepted January 25, 2013 employment injury.
On January 17, 2017 appellant, through counsel, requested a hearing of the January 10,
2017 decision denying wage-loss compensation, which was held on May 23, 2017.
In a letter dated January 19, 2017, appellant, through counsel, noted his disagreement with
OWCP’s January 10, 2017 proposed termination letter. He alleged that Dr. Simon had not
provided sufficient medical reasoning for his conclusion that appellant was able to work. Counsel
also asserted that Dr. Simon’s impartial medical examination report demonstrated that appellant’s
claim should be expanded to include the additional condition of aggravation of degenerative
disease in the cervical spine.
Appellant continued to receive additional medical treatment by Dr. Fried. In reports and
disability certificates dated February 23 and April 4, 2017, he provided examination findings and
diagnosed cervical strain, disc bulges at C4-5, C5-6, and C6-7, cervical radiculopathy, and left
radial and median neuropathy. Dr. Fried opined that appellant remained limited and could not
return to work.
In a report dated March 27, 2017, Dr. Fried discussed the physical requirements of
appellant’s work duties. He explained that the duties of outward and overhead reaching had been
problematic for her and continued to exacerbate and aggravate her symptoms. Dr. Fried opined
that in the January 25, 2013 employment injury appellant sustained a cervical strain and sprain
with evidence of disc bulging at C4-7 discs, significant nerve root irritation, and evidence of a C5T1 radiculopathy bilaterally, left greater than right. He opined that appellant was capable of
working with modified activity of no regular reaching, pulling, pushing, overhead reaching, casing,
regular head and neck posturing, and repetitive activity.
By decision dated April 20, 2017, OWCP finalized the termination in appellant’s wageloss compensation benefits, effective that date. It found that the special weight of the medical
opinion evidence rested with Dr. Simon, the impartial medical examiner, who concluded in a
November 7, 2016 report that appellant ceased to have residuals or disability due to her accepted
January 25, 2013 employment injury.
On April 26, 2017 appellant, through counsel, requested a hearing before an OWCP
hearing representative, which was held on July 19, 2017.
5

Appellant subsequently submitted a June 19, 2017 letter by Dr. Valentino. Dr. Valentino
reported physical examination findings of decreased range of motion of appellant’s cervical spine
with significant spasm. He reported that appellant continued to suffer residuals of her work-related
injury, which included a cervical strain and sprain with facet-mediated pain, aggravation of
multilevel disc protrusions, and aggravation of multilevel degenerative disc disease with cervical
radiculitis.
By decision dated August 9, 2017, an OWCP hearing representative set aside and
remanded the January 10, 2017 decision regarding appellant’s claim for wage-loss compensation.
He found that the additional medical reports by Dr. Fried and Dr. Valentino, submitted after
Dr. Simon’s November 7, 2016 impartial medical report, were sufficiently rationalized to require
further development of the medical evidence in order to determine whether the January 25, 2013
employment incident caused or aggravated additional medical conditions affecting appellant’s
cervical spine and whether these injuries contributed in any way to appellant’s partial or total
disability from work during the period May 30, 2015 through September 18, 2016.
By decision dated August 18, 2017, an OWCP hearing representative affirmed in part and
modified in part the April 20, 2017 termination decision. He found that OWCP properly accorded
special weight to Dr. Simon’s opinion and, accordingly, that OWCP had met its burden of proof
to terminate appellant’s wage-loss compensation and medical benefits. The hearing representative
also determined, however, that Dr. Simon should review the additional reports by Drs. Fried and
Valentino and provide a supplemental opinion on whether the January 25, 2013 employment injury
-- the motor vehicle accident -- had aggravated a preexisting cervical condition (degenerative disc
disease and disc protrusions) resulting in cervical radiculopathy and whether the cervical
radiculopathy was ongoing, resulting in partial or total disability.
In a supplemental report dated October 5, 2017, Dr. Simon noted that he reviewed
Dr. Fried’s March 27, 2017 and Dr. Valentino’s June 19, 2017 reports. He indicated that
Dr. Valentino had not diagnosed a condition of aggravation of underlying degenerative disc
disease or degenerative joint disease in his September 21, 2016 report. Dr. Simon also related that
despite Dr. Fried’s assessment of cervical radiculopathy, the diagnostic and neurological
examinations in the record were read as “normal” and showed no evidence of cervical
radiculopathy. He noted that physical examination showed that appellant could walk well on her
toes and with normal heel-toe-gait. Dr. Simon diagnosed frozen shoulder and degenerative joint
disease of the cervical spine.
In response to OWCP’s question, Dr. Simon concluded that appellant had not sustained an
aggravation of her underlying degenerative joint or disc disease as a result of the January 25, 2013
employment incident. He explained that the condition of degenerative joint disease and
degenerative disc disease was progressive, and would worsen with the passage of time. Dr. Simon
noted that appellant’s present condition was compatible with a worsening of her underlying
degenerative disc disease over the time period that she has been treated for her cervical sprain. He
concluded that appellant no longer suffered from the results of the January 25, 2013 employment
injury, which produced a cervical strain and sprain, but that she still suffered from degenerative
joint and disc disease of her cervical spine, which were preexisting to the automobile accident, and
had progressed with time. Regarding appellant’s disability from work during the period May 30,
2015 through September 18, 2016, Dr. Simon reported that he did not have the opportunity to
evaluate appellant during that period of time, but he understood that she was out of work during

6

that time due to a “flare-up” of her symptoms. He opined that this “flare-up” would not be due to
her work-related January 25, 2013 employment injury.
By decision dated October 23, 2017, OWCP affirmed the April 20, 2017 termination
decision. It found that the special weight of medical evidence rested with Dr. Simon’s
November 7, 2016 and October 5, 2017 impartial medical reports, which established that appellant
no longer had residuals or disability causally related to the January 25, 2013 employment injury.
By separate decision of even date, OWCP issued a de novo decision denying appellant’s
claim for wage-loss compensation for the period May 30, 2015 through September 18, 2016 based
on Dr. Simon’s report.
By letters dated October 30 and November 2, 2017, appellant, through counsel, appealed
both decisions and requested a hearing before an OWCP hearing representative. A hearing was
held on March 28, 2018 to address both decisions.
By decision dated June 5, 2018, an OWCP hearing representative affirmed the October 23,
2017 decision regarding appellant’s claim for compensation as modified. She found that appellant
was entitled to wage-loss compensation for partial disability until May 14, 2016.8 The hearing
representative also determined that appellant had not submitted sufficient medical evidence to
establish that she was entitled to wage-loss compensation for the period May 14 through
September 18, 2016. She also affirmed the October 23, 2017 decision upholding the termination
of appellant’s wage-loss compensation and medical benefits effective April 20, 2017.
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 by the weight of the evidence.9 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.10 Whether a particular injury causes an employee
to become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.11
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment

8
The hearing representative noted that appellant had been receiving wage-loss compensation for partial disability
up to May 30, 2015 and the record did not establish that there was any change in appellant’s medical condition or
work restrictions. Accordingly, she determined that appellant was entitled to the same compensation that she had
been receiving before OWCP modified her compensation. The hearing representative remanded the case as to the
partial wage-loss compensation claim for the period May 30, 2015 to May 14, 2016. Thus that period is not presently
before the Board on appeal.
9

See D.W., Docket No. 18-0644 (issued November 15, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005).

10

Id.

11

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

7

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.12
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.13 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is
causal relationship between the claimant’s claimed disability and the accepted employment injury.
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 claimed disability and the accepted
employment injury.14
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.15
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability
for the period May 15 to September 18, 2016 causally related to her accepted January 25, 2013
employment injury.
The medical evidence relevant to the claimed period of disability includes various reports
by Dr. Fried. In a May 16, 2016 report, Dr. Fried related that appellant’s neck symptoms had been
“flared” for the past two weeks and noted that she had called off work. He reported examination
findings of left-sided neck pain with lateral bending and limited flexion and positive Phalen’s,
Tinel’s, and compression testing. Dr. Fried diagnosed cervical strain and sprain, disc bulges at
C4-5, C5-6, and C6-7 with radiculopathy, and right shoulder rotator cuff strain and sprain. He
explained: “[Appellant] is currently flared. We are bringing her off work to get things calmed
down.” Dr. Fried continued to treat appellant and in medical reports and disability certificates
dated May 26 to August 16, 2016, he related that appellant’s symptoms continued despite rest from
being out of work and home modalities. He reported that appellant should remain off work because
appellant remained “symptomatic and flared.”
Although Dr. Fried opined that appellant could no longer work, his opinion does not
support a spontaneous recurrence of appellant’s neck sprain injury. While he mentioned that
appellant’s symptoms had “flared,” he did not provide medical rationale explaining how
appellant’s accepted neck sprain had worsened to the extent that she was unable to work part-time
modified-duty work beginning May 15, 2016.16 Instead, Dr. Fried noted additional diagnoses of
12

Id.

13

R.H., Docket No. 18-1382 (issued February 14, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14
See C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L.
Fowler, 45 ECAB 365 (1994).
15

See B.K., Docket No. 18-0386 (issued September 14, 2018).

16

T.K., Docket No. 18-1239 (issued May 29, 2019); M.M., Docket No. 16-0541 (issued April 27, 2010).

8

C4-5, C5-6, and C6-7 with radiculopathy and right shoulder rotator cuff strain and sprain, which
are not accepted conditions. As he failed to attribute disability to the accepted condition of neck
sprain, his reports are insufficient to establish that appellant was totally disabled from work for the
period May 16 to September 18, 2016.17
Similarly, Dr. Valentino’s reports dated June 8 to September 21, 2016 are insufficient to
meet appellant’s burden of proof. While he indicated that appellant had a “flare up of symptoms,”
he did not adequately explain why she was unable to work as a result of her accepted neck sprain
injury.18
It is appellant’s burden of proof to establish that she was disabled from work on the specific
dates and during the claimed period due to her January 25, 2013 employment injury.19 The reports
of appellant’s treating physicians did not provide a rationalized medical opinion substantiating that
she was disabled from work during the claimed period May 15 to September 18, 2016 due to her
accepted January 25, 2013 neck sprain injury. Accordingly, the medical evidence submitted is
insufficient to meet appellant’s burden of proof.20
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of compensation benefits.21 OWCP may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.22 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.23 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.24 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.25
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
17
See E.W., Docket No. 17-1988 (issued January 28, 2019); see also R.A., Docket No. 14-1327 (issued
October 10, 2014).
18

See T.G., Docket No. 18-1064 (issued April 26, 2019).

19

Supra note 11.

20

S.I., Docket No. 18-1582 (issued June 20, 2019); Alfredo Rodriguez, 47 ECAB 437 (1996).

21

A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
22

A.G., Docket No. 18-0749 (issued November 7, 2018); see also Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
23

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

24

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

25

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

9

appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.26 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.27
When there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.28
ANALYSIS -- ISSUE 2
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 20, 2017 because she no longer had residuals
or disability causally related to her January 25, 2013 employment injury subsequent to that date.
OWCP determined that a conflict in medical evidence existed between Drs. Fried and
Valentino, appellant’s treating physician who reported that she could not work due to a “flare-up”
of her work-related injuries, and Dr. Didizian, an OWCP second opinion examiner, who found that
appellant no longer had residuals or disability causally related to her January 25, 2013 employment
injury. The Board finds, therefore, that OWCP properly referred appellant to Dr. Simon for an
impartial medical examination in order to resolve the conflict.
In a November 7, 2016 report, Dr. Simon provided a detailed review of appellant’s medical
records and noted that the EMG studies were normal. Upon examination of appellant’s cervical
spine, he observed tenderness upon palpation of the left trapezius muscle and some mild firmness.
Neurological examination of appellant’s bilateral upper extremities were negative and sensation
was intact. Dr. Simon diagnosed degenerative disc disease, degenerative joint disease of the
cervical spine, and mild frozen left shoulder (adhesive capsulitis). He opined that appellant’s
accepted cervical sprain condition had completely resolved. Dr. Simon explained that a cervical
sprain was a soft tissue injury, which would heal in a matter of a few weeks to several months. He
reported that appellant’s cervical sprain injury had resolved and that she was no longer disabled
due to the January 25, 2013 employment injury. Dr. Simon further noted that appellant continued
to suffer from her preexisting degenerative disc and joint disease and would require further
treatment.
The Board finds that Dr. Simon provided a comprehensive, well-rationalized opinion in
which he found that all residuals of appellant’s accepted neck sprain injury had resolved and that
she did not have any disability due to her January 25, 2013 employment injury. Dr. Simon reported
that appellant’s current symptoms were a result of her preexisting degenerative disc and that she

26
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).
27

20 C.F.R. § 10.321.

28

M.C., Docket No. 18-1374 (issued April 23, 2019); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J.
Godfrey, 52 ECAB 486 (2001).

10

could return to limited duty after she recovered from her “flare-up” of her preexisting cervical
condition.29
The medical evidence appellant subsequently submitted is insufficient to overcome the
special weight accorded to Dr. Simon. Dr. Fried continued to provide reports and disability
certificates dated February 23 and April 4, 2017, in which he diagnosed cervical strain, disc bulges
at C4-5, C5-6, and C6-7, cervical radiculopathy, and left radial and median neuropathy and opined
that appellant could not return to work. The Board has found that reports from a physician who
was on one side of a medical conflict that an impartial specialist resolved, are generally insufficient
to overcome the weight accorded to the report of the impartial medical examiner or to create a new
conflict.30 Likewise, Dr. Valentino’s June 19, 2017 report also fails to overcome the special
weight accorded Dr. Simon as Dr. Valentino was on one side of the medical conflict.31
The Board, therefore, finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective April 20, 2017.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP properly terminate wage-loss compensation and medical benefits, the burden
shifts to the claimant to establish continuing disability or residuals, after that date, causally related
to his or her accepted injury.32 To establish a causal relationship between the condition as well as
any attendant disability claimed and the employment injury, a claimant must submit rationalized
medical evidence based on a complete medical and factual background, supporting such a causal
relationship.33 Causal relationship is a medical issue and the medical evidence required to establish
a causal relationship is rationalized medical evidence.34
ANALYSIS -- ISSUE 3
The Board finds that appellant has not met her burden of proof to establish continuing
disability or residuals, on or after April 20, 2017, causally related to her accepted January 25, 2013
employment injury.
Subsequent to the termination of wage-loss compensation and medical benefits OWCP
obtained a supplemental report of Dr. Simon. In a supplemental report dated October 5, 2017,
Dr. Simon opined that appellant no longer suffered from residuals of the January 25, 2013
employment injury, which produced a cervical strain and sprain, but that she still suffered from
degenerative joint and disc disease of her cervical spine, which were preexisting and had
29

See D.M., Docket No. 17-1052 (issued January 24, 2019); D.G., Docket No. 17-0608 (issued March 19, 2018).

30

A.R., Docket No. 18-0632 (issued October 19, 2018); I.J., 59 ECAB 408 (2008); Barbara Warren, 51 ECAB
413 (2000).
31

Id.

32
See S.M., Docket No. 18-0673 (issued January 25, 2019); C.S., Docket No. 18-0952 (issued October 23, 2018);
Manuel Gill, 52 ECAB 282 (2001).
33

Id.

34

See C.S., supra note 32; Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, supra note 13.

11

progressed with time. The Board finds that his supplemental report was based on a proper factual
and medical history and provided sufficient medical rationale to be accorded the special weight of
the medical evidence on the issue of continuing residuals or disability.
Appellant submitted a June 19, 2017 letter by Dr. Valentino. Dr. Valentino reported
physical examination findings of decreased range of motion of appellant’s cervical spine with
significant spasm. He reported that appellant continued to suffer residuals of her work-related
injury, which included a cervical strain and sprain with facet-mediated pain, aggravation of
multilevel disc protrusions, and aggravation of multilevel degenerative disc disease with cervical
radiculitis. The Board finds that this report of Dr. Valentino is insufficiently rationalized to
overcome the special weight accorded to Dr. Simon.
The Board therefore finds that appellant has not met her burden of proof to establish
continuing disability or residuals following the termination of her wage-loss compensation and
medical benefits.
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 established total disability for the period May 15 to
September 18, 2016 causally related to her accepted January 25, 2013 employment injury. The
Board also finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 20, 2017, as she no longer had residuals or
disability due to her January 25, 2013 employment injury. The Board also finds that appellant has
not met her burden of proof to establish continuing disability or residuals, on or after April 20,
2017, causally related to her accepted January 25, 2013 employment injury.

12

ORDER
IT IS HEREBY ORDERED THAT the June 5, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 5, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, Frenchburg, KY, Employer
__________________________________________

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

Docket No. 13-162
Issued: April 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 31, 2012 appellant, through her attorney, filed a timely appeal from a
September 28, 2012 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 met its burden of proof to terminate compensation for wageloss and medical benefits effective April 13, 2012.
FACTUAL HISTORY
On January 25, 2008 appellant, then a 43-year-old cook trainer, filed a traumatic injury
claim (Form CA-1) alleging that on January 25, 2008 she sustained injuries when she slipped on
an icy walkway while in the performance of duty. OWCP accepted the claim on February 27,
1

5 U.S.C. § 8101 et seq.

2008 for concussion with brief loss of consciousness and displacement of lumbar intervertebral
disc without myelopathy. On October 17, 2008 it accepted adjustment disorder with depressed
mood. Appellant received compensation for temporary total disability.
In a report dated August 4, 2009, Dr. Christopher Allen, a psychologist, provided results
of psychological examination. He found the right anterior and left posterior cerebral dysfunction
was likely related to appellant’s traumatic injury and opined that she was disabled. Dr. Allen
also stated that she displayed signs of emotional distress secondary to her traumatic injury and its
consequences. In a report dated October 13, 2009, Dr. Chadwick Walters, an osteopath,
diagnosed postconcussive syndrome and postconcussive depression with anxiety. He opined that
appellant was likely permanently disabled.
OWCP referred appellant for second opinion examinations by Dr. Richard Sheridan, an
orthopedic surgeon, and Dr. David Shraberg, a neurologist and psychiatrist.2 In a report dated
February 18, 2010, Dr. Sheridan opined that her accepted lumbar condition had resolved. In a
report dated April 10, 2010, he opined that appellant’s postconcussive syndrome would have
resolved in at most one year, and more likely within several weeks of the injury. Dr. Sheridan
found that she was neurologically sound and could return to work.
OWCP found a conflict in the medical evidence existed with respect to a continuing
neurological or orthopedic employment-related condition. In a report dated July 14, 2010,
Dr. Daniel Primm, a Board-certified orthopedic surgeon selected as a referee physician, opined
that appellant’s orthopedic conditions had resolved. In a report dated July 21, 2010, Dr. Joseph
Zerga, a Board-certified neurologist selected as a referee physician, opined that the primary
residual of the employment injury was mood disorder and anxiety.
With respect to a continuing psychiatric condition, OWCP referred appellant to
Dr. Stephen Lamb, a psychiatrist. In a report dated December 23, 2010, Dr. Lamb provided a
history and results on examination. He diagnosed adjustment disorder with mixed emotional
features. Dr. Lamb opined that the condition was casually related to the 2008 employment
injury.
By letter dated March 14, 2011, OWCP advised appellant that it proposed to terminate
medical benefits for the accepted lumbar and concussion conditions. In a decision dated
April 21, 2011, it terminated medical benefits for the lumbar and concussion conditions. OWCP
found the weight of the medical evidence was represented by Drs. Primm and Zerga.
Appellant continued to receive wage-loss compensation. In a report dated July 14, 2011,
Dr. Walters diagnosed chronic postconcussive syndrome, chronic myofascial pain syndrome,
memory loss, depression and anxiety. He opined that appellant was totally disabled.
OWCP referred appellant to Dr. Andre Fernandez, a psychiatrist and neurologist, for a
second opinion examination. In a report dated August 4, 2011, Dr. Fernandez provided a history
and results on examination. He diagnosed malingering and history of adjustment disorder with
2

5 U.S.C. § 8123(a) provides that OWCP may refer a claimant for examination as frequently and at the times and
places as may reasonably be required.

2

mixed anxiety and depressed features.
condition had resolved.

Dr. Fernandez opined that the accepted emotional

To resolve a conflict in the medical evidence,3 OWCP referred appellant to Dr. Timothy
Allen, a Board-certified psychiatrist selected as a referee physician. In a report dated January 30,
2012, Dr. Allen provided a history, results on examination and review of medical records. He
opined that appellant was not suffering from a current psychiatric diagnosis related to the
January 23, 2008 employment injury. Dr. Allen stated that her current presentation did not
support significant anxiety symptoms other than social phobia unrelated to the work injury. He
stated that appellant had “blatantly malingered the current evaluation” and it was difficult to
determine the extent of any mild cognitive defects. Dr. Allen noted the mild nature of the injury,
the time elapsed since and her independent functioning at home which suggested minimal, if any,
permanent cognitive effects. He further opined that appellant did not need further psychiatric
treatment.
In a letter dated March 9, 2012, OWCP advised appellant that it proposed to terminate
compensation for wage-loss and medical benefits based on the weight of the medical evidence.
It advised her to submit evidence or argument within 30 days. Appellant submitted an April 5,
2012 report from Dr. Christopher Allen, who stated that he had treated appellant since 2009.
Dr. Allen opined that the supposition she was malingering was speculative and not supported by
the facts. He stated that appellant was distressed by the employment accident and that
termination of benefits was premature.
By decision dated April 11, 2012, OWCP terminated wage-loss compensation and
medical benefits effective April 13, 2012. It found the weight of the evidence was represented
by Dr. Allen.
Appellant requested a hearing before an OWCP hearing representative, which was held
on July 13, 2012. In a report dated July 30, 2012, Dr. Christopher Allen provided results on
examination. He diagnosed cognitive disorder and anxiety disorder. Dr. Allen stated that
appellant manifested significant cognitive impairment.
By decision dated September 28. 2012, OWCP’s hearing representative affirmed the
April 11, 2012 termination decision.
LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 OWCP may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.5 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate

3

OWCP indicated that the conflict was between Dr. Chistopher Allen and Dr. Fernandez.

4

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

5

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition that require further medical treatment.6
Section 8123(a) of FECA also provides that if there is a disagreement between an
attending physician and a physician selected by OWCP, a third physician shall be appointed to
make an examination. OWCP regulations call this examination a referee examination. 20
C.F.R. § 10.321.
Rationalized medical opinion evidence is medical evidence based on a complete factual
and medical background, of reasonable medical certainty and supported by medical rationale
explaining basis for the opinion.7 It is well established that when a case is referred to a referee
specialist for the purpose of resolving a conflict, the opinion of such specialist, if sufficiently
well rationalized, must be given special weight.8
ANALYSIS
In the present case, OWCP accepted a lumbar disc displacement, concussion and
adjustment disorder with depressed mood. With respect to the lumbar condition, as well as the
concussion (and postconcussion symptoms including cognitive dysfunction), OWCP determined
the conditions had resolved in an April 21, 2011 decision. That decision is not before the Board
on this appeal. The issue presented on appeal is the termination of wage-loss and medical
benefits for the employment-related adjustment disorder with depressed mood.
OWCP found that a conflict existed under 5 U.S.C. § 8123(a) with respect to a continuing
employment-related condition. Dr. Fernandez opined that in his July 29, 2011 report that
appellant’s employment-related psychiatric condition had resolved. Although OWCP stated that
this was in conflict with Dr. Christopher Allen, OWCP did not identify a specific report from
Dr. Allen with a conflicting opinion. It was Dr. Walters who provided a July 14, 2011 report that
included a diagnosis of depression and anxiety, with an opinion that appellant remained disabled.
To resolve the conflict, appellant was referred to Dr. Timothy Allen, who provided a
detailed medical report with a history, results on examination and review of medical evidence.
Dr. Allen noted the mild nature of the injury and the time elapsed. He unequivocally stated that
he found no continuing employment-related emotional condition as of January 30, 2012 based on
the evidence. As noted above, a rationalized report from the referee is entitled to special weight.
Appellant submitted April 5 and July 30, 2012 reports from psychologist Dr. Christopher
Allen. In the April 5, 2012 report, Dr. Allen stated that he did not believe she was malingering.
The issue is whether appellant continued to have an employment-related emotional condition,
and if so whether there was an employment-related disability. Dr. Allen briefly stated that she
was distressed from the accident but did not provide an opinion with supporting medical
rationale on the issues presented. In the July 30, 2012 report, he discussed a cognitive
6

Frederick Justiniano, 45 ECAB 491 (1994).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

4

dysfunction, but as noted above, OWCP found that postconcussive symptoms had resolved.
Dr. Allen does not provide a rationalized opinion on causal relationship with employment. He
also included a diagnosis of anxiety disorder, but did not provide additional explanation or
discussion of causal relationship with the employment injury.
The Board finds that the reports from Dr. Christopher Allen are not sufficient to
overcome the weight according to Dr. Timothy Allen, the referee psychiatrist. The rationalized
opinion of a referee physician is entitled to special weight. The Board finds the opinion of
Dr. Timothy Allen that an employment-related emotional condition had resolved represents the
weight of the medical evidence in this case.
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 OWCP met its burden of proof to terminate compensation effective
April 13, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2012 is affirmed.
Issued: April 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Bethesda, MD, Employer
__________________________________________

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

Docket No. 21-0336
Issued: September 1, 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 January 11, 2021 appellant filed a timely appeal from a December 8, 2020 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 his burden of proof to establish a diagnosed medical
condition causally related to the accepted October 1, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 8, 2020 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 October 20, 2020 appellant, then a 55-year-old miscellaneous clerk, filed a traumatic
injury claim (Form CA-1) alleging that on October 1, 2020, he was bitten by two dogs while he
was walking from an enumeration case residence while in the performance of duty. He noted that
the bites broke his skin on his left thigh and right ankle. Appellant stopped work on October 1,
2020 and returned to work on October 2, 2020. On the reverse side of the claim form, the
employing establishment acknowledged that appellant was injured in the performance of duty.
In support of his claim, appellant submitted a bill for an emergency visit to the hospital.
In a development letter dated November 2, 2020, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim as no diagnosis of any condition
resulting from his injury had been received. It requested that appellant submit a narrative medical
report from his attending physician, which includes the physician’s opinion supported by a medical
explanation as to how the reported employment incident caused or aggravated the claimed injury.
It afforded appellant 30 days to submit the necessary evidence.
In response, appellant resubmitted a bill for an emergency visit to the hospital. He also
submitted a pharmacy receipt dated October 3, 2020 and a bill for an outpatient appointment on
October 1, 2020.
By decision dated December 8, 2020, OWCP accepted that the October 1, 2020
employment incident occurred, as alleged, but denied appellant’s claim, finding that he had not
submitted medical evidence containing a medical diagnosis in connection with his accepted
employment incident. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 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 period 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 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
3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. 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 component is whether the employment incident
caused a personal injury and can be established only by medical evidence. 7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.8 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence. 9
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted October 1, 2020 employment incident.
As noted above, to establish causal relationship between the condition, as well as any
attendant disability claimed and the employment event or incident, the employee must submit
rationalized medical opinion evidence supporting such causal relationship. 11 Causal relationship
is a medical issue, and the medical evidence required to establish causal relationship is rationalized
medical evidence.12 The evidence submitted in support of appellant’s claim consists only of
medical bills and a pharmacy receipt. Although they indicate that he sought treatment on the date
of injury, the actual medical reports were not found in the case record. The Board has held that
lay individuals are not competent to render a medical opinion. 13 Therefore, this evidence is of no
probative value and insufficient to establish the claim.

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

Supra note 8.

12

Supra note 9.

13

E.H., Docket No. 19-0365 (issued March 17, 2021); Z.S., Docket No. 16-1745 (issued May 18, 2017).

3

As there is no medical evidence of record establishing causal relationship between a
medical condition and the accepted employment incident, the Board finds that appellant has not
me his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
condition causally related to the accepted October 1, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 1, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Park Forest, IL, Employer
__________________________________________

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

Docket No. 11-1171
Issued: December 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 6, 2011 appellant filed a timely appeal from an October 15, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On September 29, 2008 appellant, then a 58-year-old senior mail processor, filed an
occupational disease claim alleging that she injured her right ring finger. She became aware of
her condition on July 27, 2008. Appellant did not incur anytime loss from work.
1

5 U.S.C. § 8101 et seq.

In a July 29, 2008 treatment note, Dr. Jacqueline C. Payne, an employing establishment
osteopath specializing in occupational medicine, specified that the date of injury was unknown.
On examination, she observed limited extension of the right ring finger at the
metacarpophalangeal joint. Dr. Payne diagnosed ruptured extensor tendon and notified appellant
that “this may not qualify as a workman’s comp[ensation] injury without an identifiable injury.”
In a July 30, 2008 duty status report, she released appellant to modified duty effective
July 29, 2008.
OWCP informed appellant in an August 7, 2008 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit a factual statement describing the
employment activities that contributed to the right finger injury and a physician’s comprehensive
report explaining how exposure to these activities caused her condition.
Appellant clarified in an August 28, 2008 statement that she worked for the employing
establishment since 1975 and most of her job activities involved repetitive grasping and fine
manipulation. Her primary duty was operating and maintaining a carrier sequence barcode sorter
that processed an average of 7,200 pounds of mail each workday. Appellant also ordered office
supplies, paid bills and manually distributed flats, bundles and parcels. She first noticed that she
was unable to lift her finger on July 27, 2008. Appellant denied having any preexisting injuries.
An August 9, 2008 treatment note from Dr. Payne advised that appellant punctured the
base of her right ring finger on that day.
By decision dated October 14, 2008, OWCP denied appellant’s claim, finding the
medical evidence insufficient to demonstrate that the accepted employment factors caused a right
finger condition.
Appellant requested a telephonic hearing, which was held on February 5, 2009. She
testified that she sustained a separate work-related injury to her right ring finger on August 9,
2008 in addition to the ruptured tendon.
In a February 2, 2009 report, Dr. Christine M. Marcotte, an osteopath specializing in
family medicine, noted that appellant sustained dropped finger of the right fourth digit
“presumably due to an injury at work” and later experienced symptoms in her third, fourth and
fifth digits. In a follow-up report dated February 19, 2009, she related that appellant was placing
bundled newspapers into a parcel container when she caught her right ring finger in the plastic
straps, was nearly dragged into the container and sustained a puncture wound. Dr. Marcotte
advised that job duties, namely operating a carrier sequence barcode sorter and handling mail,
further aggravated this condition.
On April 17, 2009 OWCP’s hearing representative affirmed the October 14, 2008
decision.
Appellant requested reconsideration on July 20, 2009. By decision dated September 18,
2009, OWCP denied her request on the grounds that she did not raise substantive legal questions
or present pertinent new evidence warranting further merit review.

2

Appellant requested reconsideration on October 1, 2009 and submitted additional
evidence. In a May 4, 2009 report, Dr. Marcotte detailed that appellant cut her right ring finger
while bundling mail in July 2008 and was thereafter unable to extend her right index, long, ring
and little fingers. On examination, she observed extensor lags at the right long, ring and little
fingers and slight dorsal swelling of the wrist around the extensor retinaculum. Dr. Marcotte
diagnosed multiple extensor tendon ruptures and advised appellant to stop work.
A series of May 8, 2009 magnetic resonance imaging (MRI) scans obtained by
Dr. Stephanie L. Van Colen, an osteopath specializing in radiology, exhibited mild degenerative
changes and effusions in the carpal and distal radioulnar joints and other findings consistent with
mild tenosynovitis of the extensor carpi radialis brevis and longus tendons.
In a May 20, 2009 note, Dr. Paschal J. Panio, a hand surgeon, noted the results of the
May 8, 2009 MRI scans and ruled out multiple extensor tendon ruptures. He recommended a
dorsiflexion orthosis and determined that appellant should remain off duty. In a July 15, 2009
note, Dr. Panio commented that appellant appeared to have multiple extensor tendon ruptures
clinically notwithstanding the prior MRI scan findings. On examination, he observed a swollen
extensor tendon of the index finger.2
A July 30, 2009 MRI scan report from Dr. Gregory A. Henkle, a Board-certified
diagnostic radiologist, did not reveal any abnormalities.
By decision dated January 11, 2010, OWCP denied modification of the April 17, 2009
decision.
Appellant requested reconsideration on March 22, 2010 and submitted additional
evidence. In a March 12, 2010 statement, she remarked that she hurt her ring finger while in the
performance of duty on or around July 8, 2008, which developed into dropped finger at the end
of the month. On August 9, 2008 appellant injured the same finger when it was pierced by the
sharp metal corner of a moving hamper. She remained off work since May 4, 2009.
Results of an April 8, 2010 electromyogram obtained by Dr. Young-Il Ro, a Boardcertified neurologist, were consistent with peripheral neuropathy and possible bilateral carpal
tunnel syndrome.3
On October 15, 2010 OWCP denied modification of the January 11, 2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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
2

The case record also contains Dr. Panio’s illegible handwritten notes from June 3, 24, August 5 and 19, 2009.

3

Appellant also submitted employing establishment documents indicating that she was in the process of filing a
(Form CA-1). The record contains a Form CA-1, dated March 23, 2010, which pertains to the alleged injury of
July 8, 2008.

3

limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are 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
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee 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 employee.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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.8
ANALYSIS
The evidence of record supports that appellant operated and maintained a carrier
sequence barcode sorter, ordered office supplies, paid bills and manually distributed flats,
bundles and parcels. Appellant was diagnosed with ruptured extensor tendon of the right ring
finger. The Board finds that she did not meet her burden of proof because the medical evidence
did not sufficiently establish that these accepted employment factors caused or contributed to her
condition.
The Board notes that appellant has filed a separate traumatic injury claim alleging that
she sustained a right ring finger injury on July 8, 2008 when her hand was caught between plastic
mail straps. Appellant also has an accepted claim for right ring finger injury, which occurred on
August 9, 2008 when her right ring finger was pierced by a sharp object. These injuries are
separate from the instant claim.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

See S.P., 59 ECAB 184, 188 (2007).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); R.R., Docket No. 08-2010 (issued April 3, 2009).

8

I.J., 59 ECAB 408 (2008); Woodhams, supra note 5.

4

In a February 2, 2009 report, Dr. Marcotte stated that appellant sustained dropped finger
of the right fourth digit “presumably due to an injury at work.” She later specified in a
February 19, 2009 report that operating a carrier sequence barcode sorter and handling mail
aggravated this condition. Dr. Marcotte’s opinion, however, did not sufficiently establish causal
relationship because she failed to explain how operating a carrier sequence barcode sorter and
handling mail pathophysiologically caused appellant’s ruptured extensor tendon.9 The Board
further points out that her February 19 and May 4, 2009 reports, as well as Dr. Payne’s August 9,
2008 treatment note, detailed a separate traumatic event in July or August 2008 that resulted in a
puncture wound to the right ring finger. As these medical records were consistent with a claim
for an injury sustained during a single workday or shift rather than over a period of time,10 they
were irrelevant with respect to the instant occupational disease claim.
The remaining medical evidence from Drs. Henkle, Panio, Payne, Ro and Van Colen
offered limited probative value on the issue of causal relationship as none of these physicians
addressed how appellant’s federal employment caused or contributed to a right ring finger
condition.11 In the absence of rationalized medical opinion evidence, appellant failed to meet her
burden.
Appellant contends on appeal that she retired effective July 2, 2010 and her injury
warranted disability benefits. As noted, the medical evidence was insufficient to establish that
her right ring finger condition was causally related to her federal employment.
The Board points out that appellant submitted new evidence on appeal. The Board lacks
jurisdiction to review evidence for the first time on appeal.12 However, appellant may submit
new evidence or argument as part of a formal written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an occupational disease
in the performance of duty.

9

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

10

See 20 C.F.R. § 10.5(q),(ee).

11

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the October 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 06-1800
Issued: May 7, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 1, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated September 30, 2005 and July 26, 2006 reducing
her wage-loss compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation based on her
capacity to earn wages in the constructed position of information clerk.
FACTUAL HISTORY
On July 28, 1998 appellant, then a 44-year-old mail handler, sustained injury to her right
shoulder while lifting a flat bucket. The claim was accepted for right shoulder strain and cervical
herniated disc. Appellant received appropriate compensation for total disability.
In a work capacity form dated September 24, 2003, Dr. Pierre Herding, appellant’s
Board-certified neurologist, restricted her to two hours of reaching, zero hours of reaching above

the shoulder, zero hours of repetitive movements in her wrist and elbow, two hours of pushing,
pulling and lifting and two hours of driving a motor vehicle. In a March 29, 2004 report, he
indicated that appellant was restricted from any repetitive movements of her wrist or elbow as
well as pushing and pulling since these aggravated her shoulder, neck and carpal tunnel
syndrome. In a May 13, 2004 report, Dr. Herding indicated that appellant had been formerly
evaluated with persistent pain in her shoulder and neck due to cervical spondylosis, a rotator cuff
tear and carpal tunnel syndrome. He noted that on physical examination appellant continued to
describe the same difficulties with pain upon abduction of the shoulder, numbness of the hand in
the median nerve distribution and decreased range of motion in the cervical spine, particularly on
the right side.
Efforts to find a suitable position for appellant at the employing establishment were
unsuccessful. On February 26, 2004 the Office referred her to vocational rehabilitation
counseling. The vocational counselor worked with appellant, but was unsuccessful in obtaining
employment.
In an April 23, 2004 report, the vocational counselor listed appellant’s functional
limitations as lifting restricted to the sedentary range, sitting one place restricted; unable to kneel,
crouch or crawl, unable to use hands and arms in repetitive motions below average numerical
and spatial aptitude; below average dexterity skills; and poor reading comprehension and
arithmetic skills. One of the positions that the vocational rehabilitation specialist recommended
as within appellant’s medical and vocational capacities was that of information clerk/greeter,
Dictionary of Occupational Titles (DOT) No. 237.367-022. He noted that this position was
within the sedentary range of activities. The vocational counselor listed the average weekly
wage earnings of an information clerk as $294.00. On that same date, he completed a form
noting that the position was available in sufficient numbers so as to make it reasonably available
to appellant within her commuting area.
By letter dated May 3, 2004, the vocational counselor asked appellant’s treating
physician, Dr. Herding, if the position of information clerk was suitable. A copy of the position
description for information clerk was enclosed. On May 13, 2004 Dr. Herding replied that
appellant was capable of performing this position. In a medical report of the same date, he stated
that appellant continued to describe pain upon abduction of her shoulder, numbness of the hand
in the median nerve root distribution and decreased range of motion of the cervical spine,
particularly on the right.
On December 8, 2004 the Office proposed a reduction in appellant’s wage-loss
compensation based on her capacity to earn wages as an information clerk at $294.00 per week.
In a medical report dated January 4, 2005, Dr. Herding certified that appellant’s medical
condition has not materially changed since her initial visit to his office on July 13, 2000.
By decision dated January 14, 2005, the Office made the proposed termination of benefits
final. The Office noted that appellant had not responded to the notice of proposed termination
within 30 days.

2

On February 8, 2005 appellant requested a hearing. On February 11, 2005 this was
changed to a request for a written review of the record.
By decision dated September 30, 2005, the hearing representative affirmed the
January 14, 2005 decision reducing appellant’s compensation benefits.
On February 28, 2006 appellant’s claim was accepted for bilateral carpal tunnel
syndrome.
On May 22, 2006 appellant requested reconsideration. She contended that there were no
available positions as an information clerk due to her restrictions. Appellant submitted a
May 25, 2006 report from Dr. Herding who stated that he had addressed her work restrictions in
October 2005 and, at that time, found that she was capable of sitting, standing, walking, bending,
squatting, kneeling and twisting, as well as utilizing her feet to operate foot controls. However,
Dr. Herding stated that he had indicated that appellant was prohibited from climbing, performing
normal hand functions or fine manipulations, reaching or working above her shoulders or
performing repetitive activities. He also noted that operating a vehicle was limited to two
hours daily. Dr. Herding concluded, “These restrictions essentially preclude any form of
employment.”
By decision dated July 26, 2006, the Office denied modification of the September 30,
2005 decision.
LEGAL PRECEDENT
Once the Office makes a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.1 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wageearning capacity, or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors and circumstances which may affect wage-earning capacity in his
or her disabled condition.2
When the Office makes a medical determination of partial disability and of specific
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor, Dictionary of Occupational Titles (DOT) or otherwise available in the
open labor market, that fits the employee’s capabilities with regard to her physical limitation,
education, age and experience. Once this selection is made, a determination of wage rate and
availability in the open labor market should be made through contact with the state employment
1

T.O., 58 ECAB ___ (Docket No. 06-1458, issued February 20, 2007); David W. Green, 43 ECAB 883 (1992).

2

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

3

service or other applicable service.3 Finally, application of the principles set forth in Albert C.
Shadrick will result in the percentage of the employee’s loss of wage-earning capacity.4
ANALYSIS
The Board finds that the Office determined that the constructed position of information
clerk represents appellant’s wage-earning capacity. The Office adjusted appellant’s compensation on the grounds that she was capable of performing the duties of the constructed
information clerk position. On March 24, 2004 Dr. Herding, appellant’s treating physician,
indicated that appellant was restricted to two hours of reaching, zero hours of reaching above the
shoulder and zero hours of repetitive movements in her wrist and elbow and two hours of
pushing, pulling and lifting and two hours of driving a motor vehicle. The vocational
rehabilitation expert found that the sedentary position of information clerk was suitable to
appellant’s medical restrictions. He forwarded a position description of the position to
Dr. Herding for his review on March 13, 2004. Dr. Herding found that appellant was capable of
performing the position. No medical evidence has been presented establishing that appellant is
not able to perform the job of information clerk. Based on the finding that the position was
reasonably available in appellant’s commuting area, the Office applied the Shadrick formula and
reduced her wage-loss compensation. Accordingly, the Board finds that the Office properly
reduced appellant’s compensation to reflect her wage-earning capacity as an information clerk.
Subsequently, in a May 25, 2006 report, Dr. Herding indicated that as of October 2005 that
appellant was capable of sitting, standing, walking, bending, squatting, kneeling and twisting, but
was prohibited from climbing, performing normal hand functions or fine manipulations reaching
or working above her shoulders or performing repetitive activities. He indicated that this would
essentially preclude appellant from any form of employment. However, these restrictions are not
different from those first recommended by Dr. Herding who does not explain why he determined
that appellant could work as an information clerk in May 2004 but was unable to do so as of
October 2005. The Office considered the proper factors, such as availability of employment and
appellant’s physical limitations, usual employment, age and education qualifications, in
determining that the information clerk position represented appellant’s wage-earning capacity.5
Accordingly, the Office properly determined that the position of information clerk represented
appellant’s wage-earning capacity effective January 14, 2005.
The Office properly determined appellant’s loss of wage-earning capacity in accordance
with the formula developed in Shadrick6 and codified at section 10.403.7 In this regard, the
Office indicated that appellant’s salary on July 28, 1998, the date of the injury, was $733.02 per
week, that the current adjusted pay rate for her job on the date of injury was $872.26 per week
and that she was currently capable of earning $294.00 per week, the pay rate of an information
3

Id.

4

Id. See Albert C. Shadrick, 5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

5

Loni J. Cleveland, 52 ECAB 171 (2000).

6

Supra note 4.

7

20 C.F.R. § 10.403.

4

clerk. The Office then determined that appellant had a 34 percent wage-earning capacity
($294.00 divided by $872.26), which was then multiplied by $733.02 to equal $249.22 per week.
The Office went on to determine that appellant had a loss of wage-earning capacity of $483.80
by subtracting $249.22 from $733.02. The Office then multiplied $483.80 by 3/4, as appellant
had dependents, which amount to a compensation rate of $362.85 per week. The Office found
that, based on the current consumer price index, appellant’s current adjusted compensation rate
was $412.50 per week. The Board finds that the Office’s application of the Shadrick formula
was proper.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation based on her
capacity to earn wages in the constructed position of information clerk.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 26, 2006 and September 30, 2005 are affirmed.
Issued: May 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5