United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE,
Egg Harbor Township, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0103
Issued: November 16, 2020

Case Submitted on the Record

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

On October 16, 2019 appellant filed a timely appeal from an October 2, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate
Boards docketed the appeal as No. 20-0103.
On February 20, 2019 appellant, then a 47-year-old federal air marshal, filed an
occupational disease claim (Form CA-2) alleging that on January 16, 2019 he experienced
shortness of breath and chest pains, due to factors of his federal employment. He noted that he
had been on limited duty since November 2018, following a shoulder repair in August 2018.
Appellant also explained that on February 17, 2019, he was diagnosed with a pulmonary embolism

1

The Board notes that appellant submitted additional evidence with his appeal. 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.

(PE) in “both the right and left side of his lung” and deep vein thrombosis (DVT) in his left leg.
He stopped work on February 17, 2019.2
Appellant completed an OWCP development questionnaire, explaining that he had
experienced difficulty breathing since October 2018, following his left shoulder surgery on
August 14, 2018. OWCP also received a number of medical reports in support of the claim.
By decision dated April 26, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish employment factors in the performance of duty, as
alleged. It noted that the diagnosed conditions may be related to his August 14, 2018 left shoulder
surgery, which was performed due to accepted conditions in a previous claim, and the present
claim had not identified new employment factors which caused the new conditions. OWCP
advised appellant that injuries or conditions arising out of, or as a result of medical treatment for
a work injury were deemed to be consequential to that work injury. It further noted that for further
consideration regarding his new medical conditions, he must submit a written request with the
pertinent medical records for review of a consequential injury under the appropriate case number.
On July 8, 2019 appellant requested reconsideration and submitted new medical evidence.
He argued that his left shoulder condition under his previously accepted claim in OWCP File No.
xxxxxx353, required a second surgery on August 14, 2018. Appellant indicated that on
February 16, 2019 he could not breathe and had chest pains due to the PE in his lungs and the DVT
in his left leg. He alleged that Dr. Trevor Feinstein, a Board-certified hematologist, provided an
opinion that his PE and DVT were due to his left shoulder surgery.

2
The present claim was assigned OWCP File No. xxxxxx321. The Board notes that appellant has a number of
prior claims. On May 18, 2004 appellant filed a claim for a May 6, 2004 traumatic injury (Form CA-1) to his right
wrist. On October 4, 2004 OWCP accepted the claim for a right wrist sprain under OWCP File No. xxxxxx445. On
May 18, 2004 appellant filed a claim for a May 13, 2004 traumatic injury to his right knee. OWCP processed the
claim as a short form closure under OWCP File No. xxxxxx446. On March 26, 2008 appellant filed a claim for a
traumatic injury to his right shoulder on even date. OWCP assigned File No. xxxxxx492. It denied the claim on
March 4, 2016, and on January 6, 2017, an OWCP hearing representative affirmed the denial of the claim. In an
August 1, 2017 decision, the Board affirmed the January 6, 2017 decision. Docket No. 17-0722 (issued
August 1, 2017). On January 8, 2009 appellant filed a claim for a January 7, 2009 traumatic injury to his right wrist.
On January 26, 2009 OWCP accepted the claim for right wrist sprain under OWCP File No. xxxxxx891. On
January 16, 2009 appellant filed a claim for a January 7, 2009 traumatic injury to his right knee. OWCP accepted the
claim for right knee sprain/strain and right patellar tendinitis under OWCP File No. xxxxxx108. On May 4, 2015
appellant filed a claim for an occupational disease for noise-induced right ear hearing loss. OWCP assigned File No.
xxxxxx586. On July 30, 2015 it denied the claim. In a December 23, 2015 decision, the Board affirmed the denial.
Docket No. 15-1816 (issued December 23, 2015). On May 3, 2016 OWCP denied modification of its prior decision.
On November 17, 2016 appellant filed a claim for a traumatic injury on even date to his left shoulder. OWCP assigned
File No. xxxxxx353. On February 14, 2017 OWCP accepted the claim for sprain of the left rotator cuff. Appellant
initially underwent an authorized left shoulder rotator cuff repair on June 5, 2017. He underwent an authorized left
shoulder rotator cuff debridement and decompression on August 14, 2018. On March 7, 2018 appellant filed a claim
for May 9, 2017 a traumatic injury to his right shoulder. He alleged that he had injured his left shoulder on
“November 16, 2017” and following left shoulder surgery, he increasingly used his right arm and developed right
shoulder symptoms. OWCP assigned File No. xxxxxx992. On June 25, 2018 it accepted the claim for bicipital
tendinitis, right shoulder. OWCP authorized a right shoulder arthroscopic procedure on July 26, 2018, however the
record does not reflect that the authorized procedure to the right shoulder was performed. Appellant’s claims have
not been administratively combined.

2

By decision dated October 2, 2019, OWCP denied modification of its prior decision. It
again explained that no new employment factors were identified that caused appellant’s condition,
that he appeared to have a consequential injury relating to a prior claim, and that the consequential
injury claim should be filed under the appropriate file number.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.3 For
example, if a new injury is reported for an employee who previously filed an injury claim for a
similar condition or the same part of the body, doubling is required.4 In the instant case, appellant
had a prior occupational disease claim for his left shoulder in OWCP File No. xxxxxx353. He
then filed the present occupational disease claim for conditions arising from the surgery for
treatment of his accepted left shoulder conditions.
For a full and fair adjudication, the Board finds that the new claim should be
administratively combined with the previously accepted claim, pursuant to OWCP procedures.
Therefore, the case must be remanded to OWCP to administratively combine the case records for
OWCP File No. xxxxxx353 and File No. xxxxxx321. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision on the merits of
appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; see P.B., Docket No. 19-1532 (issued April 30, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

3

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2019 merit decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: November 16, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.I., Appellant
and
U.S. POSTAL SERVICE, STONYBROOK POST
OFFICE, Stonybrook, NY, Employer
__________________________________________

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

Docket No. 18-0377
Issued: August 27, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 18, 2017 appellant, through counsel, filed a timely appeal from an
October 10, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the 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 more than eight percent permanent impairment of his
right lower extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On February 15, 2013 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his right knee on February 13, 2013. He reported that
after he placed mail in a mailbox, a snow bank collapsed as he stepped towards his vehicle. By
decision dated July 25, 2013, OWCP accepted appellant’s claim for tear of the right lateral
meniscus and partial tear of the anterior cruciate ligament (ACL) on the right.
On April 24, 2013 appellant underwent a magnetic resonance imaging (MRI) scan of his
right knee which demonstrated postsurgical changes of the medial meniscus, and vertical tear of
the lateral meniscus, osteoarthritis, and high-grade partial tear of the ACL with mild anterior tibial
translation. On October 18, 2013 his attending physician, Dr. John Brennan, a Board-certified
orthopedic surgeon, performed right knee surgery authorized by OWCP. This surgery consisted
of arthroscopy with partial medial and lateral meniscectomies and debridement. Appellant
returned to full-duty work on November 2, 2013.
On September 11, 2014 appellant filed a recurrence of his medical condition (Form
CA-2a). He reported that he developed gradual discomfort and decline in his right knee. Appellant
alleged that he now had a total tear of his ACL on the right. By decision dated November 19,
2014, OWCP accepted his claimed recurrence and authorized a second right knee arthroscopy.
On November 21, 2014 Dr. Brennan performed right ACL reconstruction using allograft.
On February 12, 2015 OWCP entered appellant on the periodic rolls for wage-loss compensation.
In a letter dated May 8, 2015, OWCP referred appellant, a statement of accepted facts
(SOAF), and list of specific questions to Dr. David Benatar, a Board-certified orthopedic surgeon,
for a second opinion evaluation. Dr. Benatar completed a report on May 26, 2015 and listed
appellant’s history of two work-related right knee surgeries, and a third including a meniscectomy
when appellant was 25 years old. He reviewed appellant’s medical history and performed a
physical examination finding a minimally antalgic gait on the right with a small knee effusion.
Dr. Benatar reported slight weakness to right knee extension, but full range of motion. He found
significant medial tenderness and a strong McMurray’s sign medially. Dr. Benatar also reported
some atrophy, significant crepitus, mild pain on patellar grind, and minimal stability of the ACL.
He concluded that appellant had disabling residuals related to his accepted condition, but that
appellant could return to light duty with restrictions. Dr. Benatar also noted that appellant’s current
condition was an aggravation of a preexisting condition. He diagnosed arthritis and reported that
appellant’s arthritis had progressed.
On August 23, 2015 appellant elected to receive Office of Personnel Management
retirement benefits rather than wage-loss compensation benefits from OWCP.

2

On August 24, 2015 appellant filed a claim for a schedule award (Form CA-7). In a
development letter dated September 11, 2015, OWCP requested additional medical evidence in
support of his claim for permanent impairment of a scheduled member. It afforded appellant 30
days for a response.
In a note dated September 9, 2015, Dr. Brannan reported that appellant had reached
maximum medical improvement (MMI). He completed a separate note on September 9, 2015 and
reported appellant’s symptoms of pain, weakness, and stiffness in his right leg. Dr. Brannan found
no right knee effusion and “reasonably good range of motion.” He also reported that appellant’s
ligamentous examination was stable. Dr. Brannan diagnosed tear of the medial meniscus.
In a report dated January 8, 2016, Dr. Thomas P. Nipper, a Board-certified orthopedic
surgeon, reviewed appellant’s history of injury, his 1990 right knee surgery, and his two recent
knee surgeries. He found that appellant had reached MMI. Dr. Nipper applied the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)3 and found that, based on the diagnosis-based impairment methodology, appellant had 10
percent permanent impairment of his right lower extremity for successful ACL reconstructive
surgery.4 He also found that appellant had an additional 3 percent permanent impairment for
meniscectomy,5 totaling 13 percent permanent impairment of the right lower extremity.
On March 24, 2016 OWCP referred the medical record and the SOAF to its medical adviser
to determine the extent of appellant’s percentage of permanent impairment for schedule award
purposes. In his May 25, 2016 report, OWCP’s medical adviser reviewed the medical evidence of
record and found that it was insufficient to form the basis of a schedule award. He recommended
an additional medical evaluation for schedule award purposes.
On October 17, 2016 OWCP referred appellant for a second opinion evaluation with
Dr. Joseph Estwanik, a Board-certified orthopedic surgeon. In his November 10, 2016 report,
Dr. Estwanik reviewed the SOAF and appellant’s medical history. He noted that appellant’s MRIs
demonstrated medial meniscus tear, ACL tear, and near full cartilage loss in the medial
compartment, 50 percent loss of cartilage in the lateral tibial compartment, and abnormality of the
patellofemoral joint. Dr. Estwanik opined that appellant’s loss of cartilage was preexisting and
“unrelated to his current [w]orkers’ [c]ompensation claim.” On physical examination he found no
significant patellofemoral crepitus, no effusion, and “a good Lachman test.” Dr. Estwanik noted,
“only trace movement but a good endpoint and good surgical result.” He found that appellant had
complete range of motion from 0 to 140 degrees. Dr. Estwanik noted pain with the medial
McMurray’s test, but no catching or locking. He further found tenderness from the medial joint
palpation which was associated with appellant’s “known and preexisting osteoarthritis.”
Additionally, Dr. Estwanik found that appellant’s meniscectomy and ACL reconstruction were
successful. He determined that appellant had reached MMI on May 1, 2015. Dr. Estwanik applied
the A.M.A., Guides and found that appellant had a total 10 percent permanent impairment due to
3

A.M.A., Guides (6th ed. 2009).

4

Id. at 510, Table 16-3.

5

Id. at 509.

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meniscal injury, which was 2 percent permanent impairment, and ligament repair with mild laxity,
which was 8 percent permanent impairment.6 He concluded that appellant would eventually need
a total knee replacement for this preexisting osteoarthritis.
OWCP’s medical adviser reviewed Dr. Estwanik’s report on December 3, 2016. He
applied the A.M.A., Guides and found that appellant’s impairment rating should be based on his
partial medial and lateral meniscectomies, rather than based upon his ACL injury, with a default
grade C of 10 percent impairment. The medical adviser found that appellant’s functional history
grade modifier was zero as he had no antalgic gait and no pain inventory. He reached grade
modifier one for physical examination as appellant had minimal palpatory findings on
examination. The medical adviser determined that the clinical studies adjustment grade modifier
should not be used as clinical studies were used to determine the impairment class. He then applied
the net adjustment formula of the A.M.A., Guides to reach a negative one adjustment or grade B
impairment of eight percent permanent impairment of the right lower extremity due to partial
medial and lateral meniscectomies. The medical adviser determined the date of MMI was
November 10, 2016.
OWCP referred its medical adviser’s report to Dr. Estwanik on December 6, 2016.
Dr. Estwanik responded on December 12, 2016 and disagreed that the appropriate diagnosis-based
estimate was the partial medial and lateral meniscectomies. He contended that the ACL tear was
the most salient feature of appellant’s accepted conditions. Dr. Estwanik noted, “It is well known
in knee surgery data that an ACL tear is considered ‘the beginning of the end of the knee.’”
On February 13, 2017 OWCP’s medical adviser disagreed with Dr. Estwanik and noted
that appellant’s physical findings including good Lachman’s test, trace movement, and a good
surgical result. He opined that these findings indicated that appellant “does not have any residual
instability of the ACL after ACL reconstruction.” The medical adviser contended that to qualify
for mild laxity appellant needed to demonstrate at least 5 millimeters of laxity and that
Dr. Estwanik did not document this finding in his evaluation. He concluded that the key factor for
calculating impairment should be meniscal injury and not ACL tear.
By decision dated February 21, 2017, OWCP granted appellant a schedule award for eight
percent permanent impairment of his right lower extremity.
On March 1, 2017 OWCP received counsel’s request for an oral hearing before an OWCP
hearing representative. Appellant appeared at the oral hearing on August 16, 2017 and his counsel
contended that OWCP’s medical adviser failed to consider all the appropriate conditions for the
basis of appellant’s schedule award. Counsel asserted that appellant’s employment injury
aggravated his preexisting arthritis and that this condition should be considered in his impairment
rating.
By decision dated October 10, 2017, OWCP’s hearing representative found that appellant
had not established more than eight percent permanent impairment of his right lower extremity.
He determined that the weight of the medical evidence rested with OWCP’s medical adviser
regarding the application of the A.M.A., Guides. The hearing representative further determined
6

Id. at 509-10, Table 16-3.

4

that appellant had not established any additional employment-related conditions including
preexisting arthritis as found by Dr. Estwanik which should be considered for schedule award
purposes.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
of loss of use, of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides, published in 2009.9 The Board has approved the use by OWCP of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule award
purposes.10 It is well established that in determining the amount of a schedule award for a member
of the body that sustained an employment-related impairment, preexisting impairments are to be
included.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment (DBI)
method of determining the percentage of permanent impairment. In addressing lower extremity
impairments, the sixth edition requires identifying the impairment class for the diagnosed
condition, however, it appears that it should be Class of Diagnosis (CDX), which is then adjusted
by grade modifiers based on Functional History (GMFH), Physical Examination (GMPE), and
Clinical Studies (GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).13
ANALYSIS
The Board finds that this case is not in posture for a decision.

7

Supra note 2.

8

20 C.F.R. § 10.404.

9

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A.,
Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability
Claims, Chapter 2.808.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
10

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11

P.R., id.; Carol A. Smart, 57 ECAB 340 (2006).

12

A.M.A., Guides 515.

13

Id. at 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

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OWCP accepted appellant’s claim for tear of the right lateral meniscus and tear of the
anterior cruciate ligament. It authorized two surgeries, arthroscopy with partial medial and lateral
meniscectomies as well as right ACL reconstruction using allograft. OWCP granted appellant a
schedule award for eight percent permanent impairment of his right lower extremity based on his
partial medial and lateral meniscectomies. OWCP’s hearing representative further found that
appellant was not entitled to have his preexisting right knee arthritis considered in his permanent
impairment for schedule award purposes.
Appellant’s attending physician, Dr. Nipper, determined that appellant was entitled to a
schedule award for 10 percent permanent impairment of his right lower extremity for successful
ACL reconstructive surgery.14 He also found that appellant had an additional 3 percent permanent
impairment for meniscectomy15 totaling 13 percent permanent impairment of the right lower
extremity. Dr. Nipper did not provide any findings on physical examination supporting the
selection of ACL as the appropriate diagnosis for rating or in support of any aspect of his
impairment rating. Before the A.M.A., Guides can be utilized, a description of appellant’s
impairment must be obtained from appellant’s physician. In obtaining medical evidence required
for a schedule award, the evaluation made by the attending physician must include a description
of the impairment including, where applicable, the loss in degrees of active and passive motion of
the affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation, or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others who review the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.16 As Dr. Nipper’s
report does not comply with these requirements, OWCP properly undertook further development
of the claim to determine appellant’s percentage of permanent impairment for schedule award
purposes.17
As a consequence of the deficits in Dr. Nipper’s report, OWCP referred appellant for a
second opinion evaluation with Dr. Estwanik. Dr. Estwanik noted the extent of appellant’s right
knee arthritis as found on x-ray and MRI scan. He reported that this condition was preexisting and
not related to appellant’s employment injury such that he did not consider it for schedule award
purposes. Dr. Estwanik also provided findings on physical examination including evaluation of
appellant’s ACL which demonstrated a good Lachman test, only trace movement, but a good
endpoint and good surgical result. He determined that appellant had eight percent permanent
impairment of his right lower extremity based on deficiencies in the ACL and also awarded two
percent impairment for meniscal injuries. OWCP’s medical adviser reviewed the medical records
and determined that appellant’s schedule award should be based solely on his partial lateral and
medial meniscectomies.
Dr. Estwanik disagreed with this evaluation method and asserted that appellant’s ACL
deficits were the appropriate rating method as the ACL tear was the most salient feature of
14

Supra note 4.

15

Id. at 509.

16

Robert B. Rozelle, 44 ECAB 616, 618 (1993).

17

D.H., Docket No. 18-0024 (issued May 7, 2018).

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appellant’s accepted conditions. He noted, “It is well known in knee surgery data that an ACL
tear is considered ‘the beginning of the end of the knee.’” OWCP’s medical adviser again
reviewed Dr. Estwanik’s findings and noted that he did not clearly indicate that appellant had five
millimeters of laxity which was necessary to establish a class 1 impairment due to ACL injury.
The February 21, 2017 schedule award decision was based on OWCP’s medical adviser’s
opinions dated December 3, 2016 and February 13, 2017. The medical adviser did not explain
whether appellant’s preexisting condition of arthritis had been considered or whether it should be
considered in the impairment rating.18 Furthermore, the medical adviser did not provide a citation
to the A.M.A., Guides or other medical authority for his specific requirement of five millimeters
of ACL laxity. The A.M.A., Guides specifically require “mild laxity” for impairment ratings due
to ACL injuries and specifically note that surgery is not a rating factor.19 The A.M.A., Guides
further provide that the physical examination adjustment for knee instability grade 1, is slight
instability, “[g]rade 1 Lachman’s test; slight laxity patellar mechanism.”20
As noted above, OWCP procedures provide that impairment ratings for schedule awards
include those conditions accepted by OWCP as employment related and any preexisting permanent
impairment of the same member or function. If the work-related injury has affected any residual
usefulness in whole or in part, a schedule award may be appropriate as there is no apportionment.21
The Board is unable to determine from the current record whether Dr. Estwanik or OWCP’s
medical adviser appropriately applied the A.M.A., Guides in determining appellant’s permanent
impairment for schedule award purposes, therefore this case must be remanded for further
development and appropriate impairment rating under the A.M.A., Guides. The Board is unable
to determine based on the physical findings contained in the record which diagnosis should be
utilized as the basis for appellant’s schedule award. Dr. Estwanik opined, based on his own
findings and his own physical examination of appellant, that the diagnosis of ACL injury with mild
laxity was appropriate for rating purposes. OWCP’s medical adviser defined mild laxity as at least
five millimeters of laxity and determined that Dr. Estwanik’s report did not specifically support
this finding. OWCP procedures required that in reviewing medical evidence for the purposes of a
schedule award, OWCP’s medical adviser should determine the percentage of permanent
impairment based on the standards of the sixth edition of the A.M.A., Guides and provide medical
reasoning for the percentage of impairment specified.22 The record before the Board does not
include a medical report determining the appropriate percentage of permanent impairment based

18

R.R., Docket No. 16-0589 (issued February 3, 2017).

19

Supra note 4.

20

Id. at 517, Table 16-7.

21

Supra note 18; B.K., 59 ECAB 228 (2007). See also Federal (FECA) Procedure Manual, supra note 9 at Chapter
2.808.5(d) (March 2017) (schedule awards may include preexisting impairments as there is no apportionment under
FECA).
22

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.808.6.f (March 2017).

7

on all the conditions of appellant’s right lower extremity, which contrary to OWCP’s hearing
representative findings, should consider his preexisting arthritis.23
The Board will remand the case to OWCP for further medical development. OWCP should
refer appellant to a second opinion specialist to properly determine the impairment to appellant’s
right lower extremity based on the accepted employment injuries and his preexisting arthritis and
utilizing the proper tables and figures of the A.M.A., Guides. After such further development as
necessary, OWCP shall issue a de novo decision on the extent of impairment to appellant’s right
lower extremity.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this opinion of the Board.
Issued: August 27, 2018
Washington, DC

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

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

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

23

See supra note 18; C.S., Docket No. 14-1085 (issued August 27, 2014) (finding that when the medical adviser
does not provide sufficient explanation for his rating that his report is not entitled to constitute the weight of the
medical opinion evidence).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 13-1362
Issued: November 22, 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 May 20, 2013 appellant, through counsel, filed a timely appeal of an April 1, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant established an injury in the performance of duty on
July 31, 2012.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 1, 2013 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal, counsel contends that OWCP’s decision was contrary to fact and law.
FACTUAL HISTORY
On August 1, 2012 appellant, then a 53-year-old customer service representative, filed a
traumatic injury claim alleging that on July 31, 2012 she sustained a right knee injury due to her
chair rolling out from under her when she went to sit down.
By letter dated August 3, 2012, OWCP advised appellant of the medical and factual
evidence required to support her claim.
In an August 15, 2012 workers’ compensation injury report, Stephanie McCune, a
certified physician’s assistant, diagnosed a lumbar strain and reported an injury that same date.
In an August 20, 2012 report, Dr. George E. Fisher, a treating Board-certified internist,
diagnosed bilateral lower extremity neuropathy and lumbar pain due to her July 31, 2012 fall.
He indicated that she was unable to work at that time.
By decision dated September 13, 2013, OWCP denied appellant’s claim on the grounds
that she failed to establish fact of injury.
In a letter dated September 20, 2012, appellant’s counsel requested a telephonic hearing
before an OWCP hearing representative, which was held on January 15, 2013.
On October 11, 2012 OWCP received a September 18, 2012 report from Dr. Fisher
releasing appellant to work effective September 19, 2012. Dr. Fisher noted that appellant would
continue to receive physical therapy for the injuries sustained as a result of the July 31, 2012
employment incident. Diagnoses include post-traumatic cephalgia, cervical and lumbar
strain/sprain, bilateral knee pain, myospasms and myalgia.
OWCP subsequently received an August 20, 2012 report by Dr. Fisher which provided a
history of the July 31, 2012 employment incident and physical examination findings. Diagnoses
included:
post-traumatic cephalgia; lumbar spine sprain/strain with injuries to the
myoligamentous supporting structures; cervical spine strain/sprain with injuries to the
myoligamentous supporting structures; bilateral knee sprain/strain; myospasms and myalgia.
Dr. Fisher reported that appellant was seen on August 20, 2012 for headaches and bilateral knee,
low back and neck pain complaints. A physical examination revealed moderate bilateral
paravertebral muscle spasms of the cervical spine, trapezius and lumbosacral spine.
A November 14, 2012 magnetic resonance imaging (MRI) scan of the lumbar spine
revealed L3-4 disc degeneration. The record also contains a November 14, 2012 MRI scan of
the right knee showing mild degenerative osteoarthritic changes and broad oblique posterior
medial meniscus horn tear.
In a December 14, 2012 form report, Dr. Fisher provided physical findings and history of
injury. He diagnosed lumbar spine sprain/strain with injuries to the myoligamentous supporting
structures, cervical spine strain/sprain with injuries to the myoligamentous supporting structures,
disc degeneration, posterior medial horn broad oblique tear and mild right knee degenerative
2

osteoarthritic changes. Dr. Fisher opined that the employment incident was a direct and
proximate cause of the diagnosed conditions. He further noted that, while there may be other
causes, the July 31, 2012 employment incident was one cause.
On March 8, 2013 appellant submitted a July 31, 2012 emergency room report by
Dr. Michael Dumin, a treating Board-certified emergency physician, who reported that appellant
was seen in the emergency room that day due to hitting her head and both knees as a result of
falling off her chair at work. A physical examination revealed a normal examination of the back,
upper extremities and lower extremities. A review of an x-ray interpretation of the knees was
negative although degenerative disc disease was seen on the right knee. In concluding,
Dr. Dumin diagnosed knee contusion.
By decision dated April 1, 2013, OWCP found that the employment incident occurred as
alleged, but denied the claim on the grounds that medical evidence was insufficient to establish
causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his 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.4 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.5
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.6
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.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a

3

5 U.S.C. § 8101 et seq.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

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

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.

3

specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.12 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 the specific employment factors identified by the employee.13
ANALYSIS
OWCP accepted that appellant sustained the employment incident as alleged on
July 31, 2012. It denied her claim on the grounds that she failed to submit any rationalized
medical evidence explaining how the July 31, 2012 employment incident caused or aggravated
her preexisting right knee, neck and back conditions.
The Board finds that appellant failed to submit sufficient rationalized medical evidence
supporting that her preexisting right knee, neck and back conditions were aggravated by the
June 16, 2012 incident.14
In support of her claim, appellant submitted reports from Dr. Fisher, her treating Boardcertified internist. In reports dated August 20 and September 18, 2012, Dr. Fisher attributed
appellant’s condition to the July 31, 2012 employment incident. Diagnoses from these reports
included post-traumatic cephalgia, lumbar spine and cervical sprain/strains with injuries to the
myoligamentous supporting structures, bilateral knee sprain/strain; myospasms and myalgia,
lumbar pain and bilateral lower extremity neuropathy due to the July 12, 2012 employment
incident. In a December 14, 2012 report, Dr. Fisher diagnosed lumbar spine sprain/strain with
injuries to the myoligamentous supporting structures, cervical spine strain/sprain with injuries to
the myoligamentous supporting structures, disc degeneration, posterior medial horn broad
oblique tear and mild right knee degenerative osteoarthritic changes. He opined that appellant’s
9

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

See Robert Broome, 55 ECAB 339 (2004).

4

July 31, 2012 incident was the direct and proximate cause of these conditions. Dr. Fisher further
stated there may have been other causes of her condition, but that the July 31, 2012 employment
incident was one of the causes. Medical reports consisting solely of conclusory statements
without supporting rationale are of little probative value.15 In addition, medical reports not
containing rationale on causal relationship are entitled to little probative value and are generally
insufficient to meet an employee’s burden of proof.16 In view of the lack of any rationale
provided by Dr. Fisher on the issue of causal relationship, the Board finds that his opinion fails
to establish that appellant’s preexisting right knee and back conditions were aggravated by the
July 31, 2012 employment incident.
The record also contains a July 31, 2012 emergency room report by Dr. Dumin who
noted that appellant was seen that day due to her falling off her chair at work and hitting her head
and both knees. Dr. Dumin diagnosed a knee contusion and reported normal physical findings
on examination and negative x-ray interpretation with right knee degenerative changes. Medical
evidence that offers no opinion regarding the cause of an employee’s condition is of diminished
probative value and insufficient to meet appellant’s burden of proof on causal relationship.17
The August 15, 2012 workers’ compensation injury report from Stephanie McCune, a
certified physician’s assistant, is of no probative value as she is not a physician under FECA.18
The MRI scans submitted by appellant are diagnostic in nature and therefore do not
address causal relationship.19
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.20 Causal relationship must be established by
rationalized medical opinion evidence and she failed to submit such evidence.

15

See T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, supra note 9;
William C. Thomas, 45 ECAB 591 (1994) (a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale).
16

See D.U., Docket No. 10-144 (issued July 27, 2010); S.S., 59 ECAB 315 (2008); Elizabeth H. Kramm
(Leonard O. Kramm), 57 ECAB 117 (2005); William C. Thomas, supra note 15.
17

A.F., 59 ECAB 714 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

18

Section 8101(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. See E.K., Docket No. 09-1827 (issued April 21, 2010); J.M., 58 ECAB 303 (2007); Thomas O. Bouis,
57 ECAB 602 (2006)
19

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
20

See D.U., supra note 16; D.I., 59 ECAB 158 (2007); Robert Broome, supra note 14; Anna C. Leanza, 48 ECAB
115 (1996).

5

OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of her condition. Appellant failed to
submit sufficient medical documentation in response to OWCP’s request. As there is no
probative, rationalized medical evidence addressing how her claimed right knee, neck and back
conditions were caused or aggravated by the July 31, 2012 employment incident, she has not met
her burden of proof.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. For the
reasons stated above, the Board finds that these arguments are not substantiated.
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 she
sustained an injury in the performance of duty on July 31, 2012, as alleged
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April l, 2013 is affirmed.
Issued: November 22, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 13-487
Issued: April 25, 2013

Case Submitted on the Record

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

JURISDICTION
On December 27, 2012 appellant filed a timely appeal from a November 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 appellant has established that a December 18, 1991 wage-earning
capacity determination should be modified as of March 23, 2012.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated April 22, 2009, the
Board affirmed a February 7, 2008 OWCP decision denying modification of a loss of wage-

1

5 U.S.C. § 8101 et seq.

earning capacity (LWEC) determination.2 The history provided by the Board noted that OWCP
had accepted that appellant sustained a lumbar strain and a herniated L4-5 disc in the
performance of duty on September 17, 1988. OWCP issued a December 18, 1991 LWEC
decision, finding that the selected position of leasing consultant represented appellant’s wageearning capacity. Appellant’s compensation was reduced to reflect his wage-earning capacity.
He filed a claim for a recurrence of disability as of July 8, 2003, and the Board found that he had
not submitted sufficient evidence to warrant modification of the LWEC decision. The history as
provided by the Board in its prior decision is incorporated herein by reference.
On April 23, 2012 appellant submitted a notice of recurrence of disability commencing
March 23, 2012. The medical evidence included a February 9, 2012 report from Dr. John
Cazale, a Board-certified orthopedic surgeon, who indicated that appellant continued to have
persistent back pain with radiculopathy. Dr. Cazale provided results on examination, and stated,
“At one time, it was mentioned about a possible fusion, but [appellant] opted not to have fusion
in the past.” Dr. Cazale noted that appellant had been given medication due to persistent
problems and increased pain and a magnetic resonance imaging (MRI) had been scheduled. In
an MRI scan report dated March 23, 2012, Dr. Edward Soll, a radiologist, diagnosed
postoperative changes at L5-S1 with markedly narrowed disc, spondylosis at L3-4 and L4-5
without herniation and evidence suggesting lumbarization of S1 bilaterally.
In a report dated March 30, 2012, Dr. Cazale noted the MRI scan results and stated that
appellant needed a laminectomy and discectomy and one-level fusion at L5-S1. He stated that
appellant was unable to work at the present time.
In a report dated June 15, 2012, Dr. Rand Voorhies, a Board-certified neurosurgeon,
provided a review of medical records and results on examination. He stated that appellant had a
“recurrent disc” as well as severe axial joint pain and he agreed that fusion surgery was
warranted.
In a decision dated July 27, 2012, OWCP denied the claim for compensation
commencing March 23, 2012. It found the evidence was not sufficient to warrant modification
of the December 18, 1991 LWEC.
Appellant requested a hearing before an OWCP hearing representative. The medical
evidence submitted included an August 22, 2012 report from Dr. Voorhies, who described in
detail the proposed fusion surgery. Appellant also submitted an August 2, 2012 report from
Dr. Cazale reiterating his opinion that appellant needed back surgery.
OWCP referred the case to an OWCP medical adviser for an opinion as to whether the
proposed surgery should be authorized. In a report dated October 15, 2012, the medical adviser
opined that the proposed surgery was causally related to the employment injury and was within
the realm of accepted medical practice. The medical adviser also indicated that appellant’s
accepted conditions should include lumbar postlaminectomy syndrome.

2

Docket No 08-1000 (issued April 22, 2009).

2

By decision dated November 28, 2012, the hearing representative affirmed the July 27,
2012 decision.3 The hearing representative found the medical evidence did not establish a
modification that the LWEC was warranted as of March 23, 2012.
LEGAL PRECEDENT
An LWEC decision is a determination that a specific amount of earnings, either actual
earnings or earnings from a selected position, represents a claimant’s ability to earn wages.
Compensation payments are based on the LWEC determination and it remains undisturbed until
properly modified.4
A modification of such a 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 rehabilitated, or the original determination was, in fact, erroneous.5 The
burden of proof is on the party attempting to show a modification of the loss of wage-earning
capacity determination.6
ANALYSIS
In the present case, appellant has claimed disability commencing March 23, 2012. Since
there was an existing LWEC determination in place, the issue is whether the LWEC
determination should be modified.7 The Board notes that the issue in the current appeal is not a
claim for compensation as of the date of authorized lumbar surgery. Even if a proposed surgery
is authorized by OWCP, this does not in itself establish that a claimed period prior to the
proposed surgery warrants a modification of an existing LWEC determination.8 The issue is
whether the medical evidence establishes a material change in the nature or extent of the
employment-related condition, such that appellant cannot perform the duties of the selected
LWEC position.9
A review of the medical evidence in this case does not establish a material change in the
nature and extent of an employment-related condition as of March 23, 2012 that would require
modification of the existing LWEC determination. The MRI scan was performed on March 23,
2012, and Dr. Cazale opined on March 30, 2102 that appellant required lumbar fusion surgery.
3

The record also contains an October 2, 2012 decision denying a request for reconsideration of the February 7,
2008 decision as untimely and failing to show clear evidence of error. Appellant did not request review of this
decision.
4

See Sharon C. Clement, 55 ECAB 552 (2004).

5

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

6

Id.

7

Katherine T. Kreger, 55 ECAB 633 (2004).

8

See P.M., Docket No. 12-825 (issued November 6, 2012); R.W., Docket No. 12-282 (issued June 12, 2012).

9

Id.; see also Elbert Hicks, 55 ECAB 151 (2003).

3

He did not discuss whether the MRI scan results represented a material change in the
employment-related condition. Dr. Cazale had noted in his February 9, 2012 report that fusion
surgery had previously been discussed, but appellant had opted not to have surgery. Moreover,
he did not discuss whether appellant could no longer perform the duties of the selected position
of leasing consultant. Dr. Cazale briefly stated in the March 30, 2012 report that appellant could
not work, but the record indicated that appellant had not worked at the employing establishment
since 1990 and Dr. Cazale did not provide any additional explanation as to an employmentrelated disability. The August 2, 2012 report does not provide any additional relevant
information. The Board finds that Dr. Cazale did not provide probative medical evidence of a
material change in appellant’s employment-related condition that would disable him for the
selected position as of March 23, 2012.
Dr. Voorhies provided an opinion in his June 15, 2012 report that fusion surgery was
warranted based on examination and the medical evidence. He described the proposed surgery
in an August 22, 2012 report. Dr. Voorhies did not discuss the medical issues noted above:
(1) whether there was a material change in an employment-related condition on or about
March 23, 2012, and (2) if so, did the change result in the inability to perform the duties of the
selected position of leasing consultant.
Appellant did not provide any evidence of error in the December 18, 1991 LWEC
determination. The Board finds that he has not established a basis for modification of the LWEC
determination in this case. Appellant did not show a material change in the employment-related
condition as of March 23, 2012 or meet any requirement for modification of the LWEC
determination.
On appeal, appellant argues that OWCP’s medical adviser approved a recurrence of
disability in his October 15, 2012 report, but the opinion of the medical adviser was that the
proposed surgery was employment related and medically reasonable, without discussing
disability. As noted above, the claim for compensation in this case did not commence with a
date of surgery. For the reasons stated, the Board finds that appellant did not meet his burden of
proof to establish an LWEC modification as of March 23, 2012. Appellant may request
modification of the LWEC determination, supported by new evidence or argument, at any time
before OWCP.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a
modification of the December 18, 1991 LWEC determination as of March 23, 2012.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 28, 2012 is affirmed.
Issued: April 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 07-1186
Issued: October 4, 2007

Case Submitted on the Record

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

JURISDICTION
On March 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 29, 2006, with respect to the
termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate compensation for
wage loss and medical benefits effective April 17, 2005.
FACTUAL HISTORY
Appellant filed an occupational disease claim on July 14, 2000 alleging that she sustained
bilateral carpal tunnel syndrome causally related to her duties as a data conversion operator. The
Office accepted the claim for bilateral carpal and cubital tunnel syndromes. Appellant
underwent a left carpal tunnel release surgery on September 28, 2000, right carpal tunnel release

on November 9, 2000, left ulnar nerve release at the elbow on January 25, 2001 and a right ulnar
nerve release at the elbow on February 15, 2001.
Appellant returned to a light-duty job in June 2001. By decision dated June 12, 2002, the
Office granted a schedule award for 40 percent permanent impairment to each arm. The period
of the award was 124.8 weeks from February 28, 2002. The record also contains a June 12, 2002
decision finding that her light-duty job had wages equal to the date-of-injury job and her actual
earnings fairly and reasonably represented appellant’s wage-earning capacity.
In a report dated January 6, 2004, an attending orthopedic surgeon, Dr. W. Carl Dyer,
diagnosed recurrent left carpal tunnel syndrome, right tardy ulnar nerve palsy and bilateral
medial and lateral epicondylitis. He opined that appellant’s job injury had not resolved and she
should be in a light-duty status with no repetitive gripping and pulling. Dr. Dyer indicated that
the current work restrictions were basically the same as restrictions effective March 2002.
On March 30, 2004 the employing establishment offered appellant a new light-duty
position. Appellant stopped working on March 31, 2004 and filed a notice of recurrence of
disability (Form CA-2a). Following the expiration of the schedule award on May 15, 2004,
appellant began receiving compensation for temporary total disability.
The Office referred appellant, a statement of accepted facts and medical records, to
Dr. Neil Spitalny, an orthopedic surgeon, for a second opinion examination. In a report dated
September 16, 2004, Dr. Spitalny provided a history and reviewed the medical record. He noted
that an electromyogram (EMG) performed in July 2003 was normal. Dr. Spitalny provided
results on examination and diagnosed postoperative scarring of the median and ulnar nerves,
cervical spondylosis and fibromyalgia. In response to a question as to objective residuals
attributable to the work injury, Dr. Spitalny stated: “There are no residuals attributable to work
injury and residuals are related to her underlying fibromyalgia, her cervical spondylosis and her
multiple surgical procedures.” He concluded that he did not find that appellant had any objective
residuals attributable to a work injury and any work restrictions were not based on any workrelated injury.
The Office determined that a conflict in the medical evidence existed. Appellant was
referred to Dr. Richard Bagby, Jr., a Board-certified orthopedic surgeon. In a report dated
February 8, 2005, Dr. Bagby provided a history and results on examination. He diagnosed
continued subjective symptoms of pain, numbness and weakness. Dr. Bagby stated that it was
reasonable to assign some of appellant’s pain or symptoms to scar tissue following numerous
surgeries, but this was not confirmed neurodiagnostically or even on the basis of internally
consistent symptoms. His reported findings of an essentially normal examination were
inconsistent with subjective symptoms of work and activity intolerance. Dr. Bagby further
stated:
“In retrospect and knowing the outcome of [appellant’s] numerous surgeries, a
knowledg[e]able physician would conclude that she probably never really had
surgically treatable work induced carpal tunnel syndrome of cubital syndrome and
that any continuing symptoms she had had, without surgery, would not be work
related. However, she has had the surgeries and has had the manipulation of the

2

tissues and scarring and it is now not possible to apportion postoperative effects
from preoperative or nonoperative symptoms of whatever other cause. It is clear
that she does n[o]t currently have carpal tunnel syndrome, or cubital tunnel
syndromes, or functional nerve damage either from the surgery, or from other
causes either.”
He concluded that appellant had no current objective residuals directly attributable to the work
injuries.
By letter dated February 23, 2005, the Office notified appellant that it proposed to
terminate her compensation based on the weight of the medical evidence. Appellant submitted a
March 9, 2005 electromyogram/nerve conduction velocity (EMG/NCV) report from
Dr. David Rankine who reported persistent ulnar nerve motor delay at the wrist.
The Office requested that Dr. Bagby review the evidence and provide a supplemental
report. In a report dated March 30, 2005, Dr. Bagby noted that Dr. Rankine did not make a
diagnosis based on the diagnostic report. He stated that the EMG/NCV evidence was the least
reliable element in making a diagnosis because it is often inconsistent and relies in part on the
interpretation of the testor. Dr. Bagby noted the normal results in July 2003 and reaffirmed his
prior opinion. In a report dated April 14, 2005, an Office medical adviser opined that he was in
agreement with Dr. Bagby.
By decision dated April 20, 2005, the Office terminated compensation for wage loss and
medical benefits effective April 17, 2005.
Appellant requested a review of the written record and submitted additional evidence. In
a report dated September 7, 2005, Dr. Dyer diagnosed bilateral recurrent carpal tunnel syndrome.
He opined that the diagnosis was directly related to the original work injury. In a report dated
May 5, 2005, Dr. Bruce Kaplan, a neurologist, who had previously provided a July 30, 2003
EMG report, stated that there was no evidence of either carpal tunnel syndrome or ulnar
neuropathy at the time of his study. He explained that, while “inching” studies (such as the
March 9, 2005 study) may uncover milder cases of each disorder, he was reluctant to use the
technique due to a high number of false positive results. Dr. Kaplan stated that appellant did not
have anything approaching severe or moderately severe forms of these disorders given the
normalcy of the earlier results.
By decision dated November 21, 2005, an Office hearing representative affirmed the
April 20, 2005 decision. The hearing representative found that the weight of the evidence was
represented by Dr. Bagby.
In a report dated September 11, 2006, Dr. Rankine opined that appellant could not do
repetitive work. By report dated September 21, 2006, Dr. Dyer again diagnosed recurrent
bilateral carpal tunnel syndrome, right tardy ulnar palsy and bilateral medial and lateral
epicondylitis. He stated that appellant’s conditions were related to her injuries and subsequent
surgeries.
In a decision dated December 29, 2006, the Office reviewed the case on its merits and
denied modification of the November 21, 2005 decisions.
3

LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.2 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition that require further medical treatment.3
It is well established that when a case is referred to a referee examiner for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.4
ANALYSIS
In the present case, the Office accepted bilateral carpal tunnel syndrome and cubital
syndrome as causally related to appellant’s federal employment as a data conversion operator.
Appellant had stopped working as of March 31, 2004 and was receiving compensation for wage
loss. It is, therefore, the Office’s burden to establish that disability from the accepted conditions
had ceased. Since the Office also terminated medical benefits, it is the Office’s burden to
establish that residuals of the accepted injuries had ceased.
The Office found that a conflict existed in the medical record with respect to the accepted
conditions. Dr. Dyer, an attending physician, opined that appellant continued to have a recurrent
carpal tunnel syndrome. Dr. Spitalny, the second opinion examiner, did not diagnose carpal
tunnel syndrome or cubital tunnel syndrome and found no objective evidence of these conditions.
To resolve the conflict, appellant was referred to Dr. Bagby as a referee examiner.5
Dr. Bagby clearly indicated that he found no evidence of a continuing carpal tunnel
syndrome or cubital tunnel syndrome. While he stated that, in view of the outcome of surgeries,
a physician would conclude that appellant probably never had a surgically treatable employmentrelated condition, he did not base his opinion as to the current condition on the belief that
appellant never had an employment-related condition. Dr. Bagby noted that the results of the
1

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

2

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

3

Frederick Justiniano, 45 ECAB 491 (1994).

4

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

5

The Federal Employees’ Compensation Act provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make the examination. 5 U.S.C. § 8123(a). The implementing regulation states that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion of either a second
opinion physician or an Office medical adviser, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case. 20 C.F.R. § 10.321 (1999).

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July 2003 diagnostic testing and offered an unequivocal opinion that appellant did not currently
have carpal or cubital tunnel syndrome. He reviewed the March 9, 2005 diagnostic study and
reaffirmed his opinion in a March 30, 2005 supplemental report. The Board finds that Dr. Bagby
provided a reasoned medical opinion that is entitled to special weight as a referee examiner. The
weight of the medical evidence supported the Office’s termination of compensation for wageloss and medical benefits effective April 17, 2005.
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail,
appellant must establish by the weight of the reliable, probative and substantial evidence that he
had an employment-related disability which continued after termination of compensation benefits.6
Appellant submitted additional evidence after the April 20, 2005 termination, but it is not sufficient
to establish a continuing employment-related condition or disability. Dr. Dyer opined in a
September 7, 2005 report that appellant had recurrent bilateral carpal tunnel syndrome related to
her original injury, without providing a rationalized medical opinion.7 Dr. Kaplan reaffirmed in his
May 5, 2005 report that there was no evidence of carpal tunnel syndrome at the time of his July 30,
2003 report.
The Board notes that in the development of the medical evidence the issue of whether
there was a consequential injury as a result of surgery authorized for the accepted conditions was
raised. Dr. Spitalny, for example, diagnosed postoperative scarring of the median and ulnar
nerves, without providing additional explanation. It is appellant’s burden of proof to establish
that she sustained an injury causally related to surgeries performed for the accepted conditions.8
Dr. Bagby noted the possibility that some of appellant’s symptoms were related to scarring from
surgeries performed, but he stated that he could not confirm this neurodiagnostically or on the
basis of consistent symptoms. Dr. Dyer briefly stated in his September 21, 2006 report that
appellant’s conditions were due in part to prior surgeries, without providing a reasoned medical
opinion. The evidence of record is not sufficient to establish a consequential injury resulting
from surgeries authorized for the accepted conditions.
CONCLUSION
The Office met its burden of proof to terminate compensation for wage loss and medical
benefits based on the weight of the medical evidence as represented by Dr. Bagby, the referee
examiner.

6

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

7

Additional reports from a physician on one side of the conflict that is properly resolved by an impartial specialist
are generally insufficient overcome the weight accorded the referee’s report or create a new conflict. See Harrison
Combs, Jr., supra note 4; Dorothy Sidwell, 41 ECAB 857 (1990).
8

See Kathy A. Kelley, 55 ECAB 421 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 29, 2006 is affirmed.
Issued: October 4, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Jose, CA,
Employer
__________________________________________

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

Docket No. 08-2204
Issued: July 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 7, 2008 appellant filed a timely appeal of the June 5, 2008 merit decision of
the Office of Workers’ Compensation Programs terminating his compensation benefits as of
June 2, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective June 2, 2008.
FACTUAL HISTORY
On August 16, 2002 appellant, then a 44-year-old mail handler, sustained injury to his
left shoulder and neck while lifting a bundle of magazines. The Office accepted the claim for
left shoulder strain and authorized surgery, on January 31, 2003, for left shoulder open
acromioplasty and distal clavicle resection. Compensation benefits were paid and appellant was

released to full-modified work on March 24, 2003. At the time of the August 16, 2002 injury he
was working full-time light duty due to a previous left shoulder work injury in 1993.1
In an August 23, 2003 report, Dr. Philip Wirganowicz, a Board-certified orthopedic
surgeon and Office referral physician, reviewed a statement of accepted facts, appellant’s
medical record and presented findings on examination. He provided an impression of left
shoulder impingement syndrome and adhesive capsulitis of the left shoulder. Dr. Wirganowicz
advised that appellant continued to have residuals of the August 16, 2002 work injury in terms of
pain, weakness, and limited range of motion in the shoulder. He opined that appellant’s
condition was an aggravation of a preexisting condition. However, the aggravation which
caused the left shoulder strain was temporary and would have ceased approximately six weeks
after the August 16, 2002 injury. Dr. Wirganowicz further opined that appellant’s work-related
injuries in 1993 and 2002 may have accounted for the shoulder impingement and adhesive
capsulitis but the eventual partial tear of the supraspinatus tendon would be a natural progression
of the underlying disease. He concluded that appellant had a preexisting disability from the 1993
work-related left shoulder injury.
In a January 23, 2004 report, Dr. Frank De Mayo, an attending Board-certified orthopedic
surgeon, noted that a magnetic resonance imaging (MRI) scan showed possible tear of the
supraspinatus. He stated that appellant was considered permanent and stationary since he
declined surgery. Dr. De Mayo noted that appellant could work, but was not able to perform any
overhead activities, and could push or pull no more than 40 pounds. He continued to see
appellant.
In a June 11, 2004 report, Dr. De Mayo noted that appellant continued to have pain in the
left shoulder. He advised that appellant had de Quervain’s tenosynovitis in the left hand which
he opined was work related due to his repetitive activities of grabbing bundles and steering a
forklift. On September 3, 2004 Dr. De Mayo noted that appellant had left-side neck pain with
radiation into the shoulder. In a November 10, 2004 report, appellant continued to have pain in
the trapezius region as well as some crepitus in the anterior subacromial space and pain laterally
in the acromial area. Dr. De Mayo also noted that appellant had carpal tunnel symptoms in the
upper extremities. As appellant wished to try pain management before surgery, he referred him
to Dr. Min Zheng, a Board-certified physiatrist.
In an October 29, 2004 report, Dr. Zheng noted appellant’s complaints of left neck pain
radiating to the left upper extremity and presented findings on examination. She noted that the
November 4, 2002 MRI scan of the cervical spine showed no abnormalities. Dr. Zheng
diagnosed chronic left cervicalgia with left arm radicular pain probably secondary to the cervical
spine etiology with radiculitis, probable myofascial pain syndrome and left shoulder pain status
post surgery.
In a July 23, 2007 report, Dr. De Mayo advised that nerve conduction studies were
consistent with bilateral carpal tunnel syndrome and left C7 radiculopathy.

1

The claim involving the 1993 injury is not before the Board on the present appeal.

2

On August 20, 2007 Dr. De Mayo stated that appellant continued to have severe pain in
the left side of his neck with neck stiffness, radiating down the arm bilaterally with numbness
mainly on the left arm radiating down to dorsum of the hand to all five fingers. He noted that the
previous electromyogram (EMG) showed evidence of C7 radiculopathy on the left.
Dr. De Mayo advised that the recent MRI scan of the neck did not show definite disc herniation.
He stated that appellant’s shoulder pain clinically appeared to be mostly cervical in nature. An
August 9, 2007 MRI scan of the cervical spine showed mild degenerative changes at several
levels, with the most significant findings at C6-7 with no stenosis of the central canal or neural
foramina.
On September 17 and October 16, 2007 Dr. De Mayo reiterated that appellant continued
to have pain in the neck, left shoulder and left arm. He stated that appellant had pain in the neck
from the beginning of the work injury and the worsening of the pain was not a new condition as
it has been present since the beginning with various degrees of severity. Dr. De Mayo opined
that appellant’s cervical pain resulted directly from the work injury. He explained that there
were no preexisting conditions or other injuries and no other reason to base his pain on any other
case.
On October 15, 2007 the Office received an August 20, 2007 report from Dr. Zheng,
which noted that appellant had a history of bilateral shoulder injury status post surgery and was
last seen on July 18, 2007 for left neck pain radiating to the left top of shoulder down to the
lateral upper arm. Dr. Zheng noted that appellant stated his symptoms began in 2002 with his
second work-related injury and reported that the MRI scan of the cervical spine in 2002 showed
no abnormalities. She indicated that the electrodiagnostic studies of July 9, 2007 showed
bilateral mild to moderate carpal tunnel syndrome and left C7 chronic radiculopathy and the MRI
scan of the cervical spine dated August 9, 2007 was not available for review. Dr. Zheng
provided an impression of chronic left cervicalgia with exacerbation and left C6-7 radicular pain
and paresthesia secondary to cervical degenerative disc disease and disc protrusion, left C7
radiculopathy, and mild to moderate carpal tunnel syndrome bilaterally.
On October 29, 2007 the Office referred appellant to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion, who was provided with a copy of appellant’s
medical records, a statement of accepted facts and a list of questions.
In a November 20, 2007 report, Dr. Swartz reviewed the medical record and statement of
accepted facts. He stated that a left shoulder MRI scan report of September 5, 2002 noted a
small tear of the supraspinatus muscle at its insertion with smaller cortical defect and irregularity
and a mild degenerative change in the acromioclavicular joint. Dr. Swartz further noted that an
MRI scan report of the cervical spine dated November 2, 2002 showed no abnormalities. In
reference to the left shoulder injury, he noted that an MRI scan report of September 5, 2002 and
Dr. De Mayo’s October 16, 2002 report, documented degenerative changes on the
acromioclavicular (AC) joint and a small partial tear which were preexisting conditions that were
aggravated. The MRI scan study of the cervical spine revealed a normal study. Dr. Swartz
found that appellant sustained a soft tissue strain related to the claim by direct cause. He noted
that there was no evidence of a preexisting condition to the cervical spine. Dr. Swartz opined
that the aggravation of the preexisting left shoulder condition and the soft tissue strain of the
cervical spine were both temporary conditions that would have ceased by September 30, 2002

3

after appropriate medical treatment as was noted by Dr. Wirganowicz. Based on his review of
the medical records, Dr. Swartz opined that appellant did not have any continuing residuals of
the August 16, 2002 work injury. He concurred with Dr. Wirganowicz’s conclusion that the
aggravation of the left shoulder ceased on September 30, 2002. Dr. Swartz also opined that the
soft tissue strain of the cervical spine also ceased on that same date. He opined that appellant’s
problems with the cervical spine were primarily related to his bilateral carpal tunnel syndrome
and unrelated to the August 16, 2002 work injury. With respect to ongoing left shoulder pain,
Dr. Swartz noted that Dr. De Mayo had advised in an August 20, 2007 report that the pain
appeared cervical in nature and was not a surgical problem. Dr. Swartz stated that his
examination did not reveal any surgical indications; however, he found chronic degenerative
changes in the left shoulder which were related to appellant’s preexisting condition. Dr. De
Mayo opined that appellant could work eight hours a day with prophylactic restrictions on
reaching above the shoulder no more than four hours and pushing, pulling, and lifting no more
than four hours and not above 25 pounds.
In a December 27, 2007 letter, the Office informed appellant that a cervical condition was
never accepted as part of the August 16, 2002 work injury. It provided him a copy of
November 20, 2007 report from Dr. Swartz and requested that his physician provide a response.
On January 4, 2008 the Office received Dr. Zheng’s September 12, 2007 report.
Dr. Zheng noted appellant’s work injury and treatment and discussed the results of the
electrodiagnostic studies of July 9, 2007 and the MRI scan of the cervical spine dated
August 9, 2007. She listed an impression of chronic left cervicalgia with exacerbation, left C6-7
radicular pain and paresthesia secondary to the cervical degenerative disc disease with disc
protrusion left C7 radiculopathy and mild to moderate carpal tunnel syndrome bilaterally.
In reports dated January 17 and February 18, 2008, Dr. De Mayo stated that, while
appellant may have had some cervical disc disease as an underlying factor to his injury, he had
no symptomatology until his work activities caused his neck and shoulder symptoms. He opined
that appellant’s work caused enough repetitive motion of his neck and shoulder to cause severe
radiculopathy. Dr. De Mayo opined that appellant’s work activities caused a permanent
aggravation of his preexisting cervical condition.
By notice dated April 30, 2008, the Office proposed to terminate appellant’s wage-loss
and medical benefits as the weight of the medical evidence demonstrated that the accepted
conditions ceased without residuals. It accorded determinative weight to the opinion of
Dr. Swartz, the second opinion specialist.
In a March 5, 2008 report, Dr. De Mayo noted appellant’s complaints of pain in his neck
and numbness in both hands. He advised that appellant had bilateral carpal tunnel syndrome and
cervical pain. Dr. De Mayo stated that appellant’s left shoulder remained painful in the area of
the distal clavicle and acromion with some limitation of motion. He noted that appellant might
ultimately need shoulder surgery but that he first wanted further evaluation of appellant’s neck.
Dr. De Mayo stated that appellant’s work status was unchanged.
By decision dated June 5, 2008, the Office terminated appellant’s wage-loss and medical
benefits, effective June 2, 2008, finding that the accepted injury had ceased without residuals.

4

LEGAL PRECEDENT
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.2 Having determined that an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.3 The Office’s burden of proof in terminating compensation includes
the necessity of furnishing rationalized medical opinion evidence based on a proper factual and
medical background.4
Section 8123(a) of the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.5
ANALYSIS
The Office accepted that appellant sustained a left shoulder strain as a result of an injury
on August 16, 2002 and authorized a January 31, 2003 surgery for left shoulder open
acromioplasty and distal clavicle resection. The record reflects that appellant had a previous
work-related injury to his left shoulder in 1993. The Office terminated appellant’s compensation
benefits effective June 2, 2008 on the grounds that the accepted condition had resolved without
residuals. It accorded determinative weight to the opinion of Dr. Swartz, the second opinion
specialist.
The Board finds there is a disagreement between Dr. De Mayo, appellant’s treating
physician, and Dr. Swartz, the second opinion examiner, regarding the aggravation of appellant’s
preexisting left shoulder condition. In reports dated January 17 and February 18, 2008,
Dr. De Mayo opined that appellant’s work entailed repetitive motion to the neck and shoulder
which caused severe radiculopathy. He stated that appellant’s work permanently aggravated
appellant’s preexisting degenerative disease. Dr. Swartz stated that, while the October 16, 2002
work injury resulted in a left shoulder condition and a soft tissue strain of the cervical spine, such
aggravation was temporary and ceased by September 30, 2002. When such conflicts in medical
opinion arise, 5 U.S.C § 8123(a) requires the Office to appoint a third or referee physician, also
known as an impartial medical examiner.6 The Board finds that the Office did not meet its
burden of proof to terminate appellant’s compensation due to an unresolved conflict in medical
opinion.

2

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

3

Id.

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990).

6

5 U.S.C. § 8123(a).

5

CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits effective June 2, 2008 as there is an unresolved conflict in medical
opinion.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2008 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: July 8, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6