United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Carson, CA, Employer
__________________________________________

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Appearances:
Dennis J. O’Sullivan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1215
Issued: September 18, 2007

Case Submitted on the Record

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

JURISDICTION
On April 4, 2007 appellant filed a timely appeal of the January 4, 2007 merit decision of
the Office of Workers’ Compensation Programs, which affirmed the denial of his claim.
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The issue is whether the Office properly rescinded acceptance of appellant’s claim for
lumbar strain and lumbar radiculopathy.
FACTUAL HISTORY
On May 6, 2005 appellant, then a 42-year-old customs and border protection office, filed
a traumatic injury claim alleging that on April 19, 2005 he injured his back when he climbed up
on a truck to help stow equipment. He described his condition as sharp, acute pain in the lower
back, which reportedly had been diagnosed as a bulging disc pressing on the sciatic nerve.
Appellant previously filed a claim for a similar low back injury that allegedly occurred on

April 26, 2005. In a Form CA-1 dated April 26, 2005, he explained that about a month earlier he
climbed onto a VACIS (vehicle and cargo inspection system) and felt pain in his lower back.
Appellant assumed he had pulled a muscle. On April 26, 2005 he climbed on a container and felt
excruciating pain in his lower back, which radiated down his right leg. Appellant also reported
numbness in his right foot. He explained that his condition had gradually worsened since the
initial injury.
Dr. David C. Chang, a Board-certified orthopedic surgeon, examined appellant on
April 27, 2005. He reported that appellant injured himself at the end of March 2005 when
climbing on an x-ray machine. Appellant claimed to have felt a twinge in his lower back. He
also stated that he reported the incident to his supervisor, Ramon V. Rodriguez. Dr. Chang
reported that appellant initially noted pain in his lower back, but within the past few weeks, pain
developed in the right buttock and hamstring. Currently, there was pain radiating into the right
calf. Dr. Chang diagnosed lumbar sprain and lumbar radiculopathy.
A May 3, 2005 lumbar magnetic resonance imaging (MRI) scan revealed a disc bulge at
L4-5 with facet osterarthrosis, causing mild central canal stenosis. There was also a right
paracentral disc extrusion at L5-S1, causing significant central canal and right lateral recess
stenosis. Appellant also obtained MRI scans of the cervical and thoracic spine, which revealed
multilevel degenerative disc protrusions, a discoid osteophyte complex and stenosis.
Dr. Chang next saw appellant on May 4, 2005 and again on May 16, 2005. During the
May 16, 2005 examination, appellant informed Dr. Chang that some of the information he
initially reported was incorrect. Specifically, the date of injury was not March 2005 as originally
reported, but “nearer to April 19, 2005.” Dr. Chang also reported that appellant had started
seeing a chiropractor just prior to his injury. In a June 2, 2005 attending physician’s report
(Form CA-20), Dr. Chang again identified April 19, 2005 as the date of injury and reported that
appellant felt a twinge in his back while climbing an x-ray machine. He attributed appellant’s
injury to awkward positioning while climbing an x-ray machine. Dr. Chang noted that he had
discharged appellant from treatment on May 16, 2005. At that time, appellant was advised that
he could immediately return to light work. Dr. Chang anticipated that appellant would be able to
resume his regular duties as of July 1, 2005.
The Office inquired about the multiple claims appellant filed with differing dates of
injury. Appellant informed the Office that he sustained only one back injury, which occurred
April 19, 2005 while he was bending over to attach straps to a VACIS machine. The Office
subsequently concluded that appellant had filed duplicate claims. On April 27, 2006 the Office
accepted appellant’s claim for lumbar sprain and lumbar radiculopathy, with an April 19, 2005
date of injury.
When the Office received a request for payment for appellant’s thoracic and cervical
MRI scans it questioned the necessity of the procedure given that appellant’s accepted injury was
limited to the lumbar spine. During a June 1, 2006 telephone conversation with the Office,
appellant denied having a cervical condition. Upon further investigation, the Office learned that
Dr. Jonathan Sadai, an allergist, had ordered the May 3, 2005 MRI scans of the cervical, thoracic
and lumbar spine. Dr. Sadai provided a copy of his April 1, 2005 progress notes which revealed
that appellant was climbing a truck and on the way down he fell on his back and hit his upper

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back and lower back. He noted tenderness in the cervical and lower thoracic spine. Dr. Sadai’s
diagnostic impression was “injury to cervical spine, entire spine,” and he recommended
obtaining MRI scans of the cervical, thoracic and lumbar spine.
During a June 5, 2006 teleconference, appellant advised the Office that he had also fallen
while stepping off the VACIS truck. His right leg reportedly gave out while he was going down
the truck stairs. This caused appellant to fall backwards.
The Office requested clarification from Dr. Sadai regarding the reported cervical
condition and the date of the alleged injury. The Office explained that neither appellant nor
Dr. Chang made mention of any cervical condition. Additionally, the Office pointed out that
Dr. Sadai’s April 1, 2005 progress notes referenced an injury that ostensibly occurred more than
two weeks prior to the accepted injury of April 19, 1995.
On June 6, 2006 the Office received another progress note from Dr. Sadai with entries for
April 1 and 25, 2005. The April 25, 2005 entry was identical to what had previously been
identified as treatment for a back condition on April 1, 2005. The April 1, 2005 entry was
amended to reflect only the administering of an “allergy injection” that day. No explanation was
offered for the noted change.
On June 7, 2006 the Office advised appellant that it proposed to rescind acceptance of his
claim because of discrepancies in the record that called into question whether the April 19, 2005
injury occurred as alleged.
Appellant’s counsel’s submitted a written response on June 27, 2006, which took
exception to the claims examiner’s investigation. Appellant also submitted a June 13, 2006 letter
from Dr. Sadai, who explained that he ordered cervical and thoracic studies because of possible
neck involvement and referred appellant to Dr. Chang, an orthopedic specialist, for further
evaluation. Dr. Sadai stated that appellant did not have any prior injuries.
By decision dated August 17, 2006, the Office rescinded acceptance of appellant’s claim.
Appellant subsequently requested a review of the written record.
The Office received an undated statement from Mr. Rodriguez, appellant’s supervisor at
the time of the alleged back injury. Mr. Rodriguez was the supervisor on duty on April 26, 2005
and appellant was assigned to his team. At about 4:40 p.m., appellant informed Mr. Rodriguez
that he had hurt his back and was in a lot of pain. Mr. Rodriguez asked about the circumstance
of the injury and appellant responded that about a month or so prior he climbed on the VACIS
truck and pulled a muscle, but did not tell anyone at the time. According to Mr. Rodriguez,
appellant further stated that, on April 26, 2005, while examining a container, he felt the pain
again, but worse than before. He advised appellant to seek medical attention and submit a Form
CA-1, which he did. Mr. Rodriguez also stated that, in the two years prior to the April 26, 2005
report of injury, appellant had not complained of back pains.
In a January 4, 2007 decision, the Office hearing representative affirmed the August 17,
2006 rescission of appellant’s claim.

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LEGAL PRECEDENT
The Office may reopen a claim at any time on its own motion and may modify, rescind,
decrease or increase compensation previously awarded, or award compensation previously
denied.1 Once the Office accepts a claim, it has the burden of justifying termination or
modification of benefits.2 This burden applies even where the Office later decides that it
erroneously accepted a claim.3 The Office must provide a clear rationale for rescinding
acceptance of a claim.4
ANALYSIS
The Office rescinded acceptance of the claim because of inconsistencies in the record that
called into question whether appellant injured his back on April 19, 2005. It is the employee’s
burden to establish that his or her injury occurred at the time, place and in the manner alleged.5
An injury does not have to be confirmed by an eyewitness to establish that it occurred in the
performance of duty.6 An employee’s statement regarding the circumstances surrounding an
injury is of great probative value and will be accepted unless refuted by persuasive evidence.7
The employee statement must be consistent with the surrounding facts and circumstances as well
as the employee’s subsequent course of action.8 An employee has not met his or her burden of
proof where there are inconsistencies in the record that cast serious doubt on the validity of the
claim.9
The timing of appellant’s claimed back injury is uncertain. The record suggests three
possible time frames when an injury may have occurred. The earliest occurrence would have
been sometime in March 2005. Appellant referenced this date in his April 26, 2005 claim and
provided similar information when he was initially examined by Dr. Chang on April 27, 2005.
Appellant later claimed that the back injury occurred on April 19, 2005. Dr. Sadai’s original
April 1, 2005 progress notes tend to support the likelihood that appellant injured his back prior to
April 19, 2005. However, the doctor later amended his progress notes to reflect that appellant
was seen on April 1, 2005 only for an allergy shot. The April 26, 2005 claim form also suggests
that appellant may have sustained an injury earlier that day when he “climbed up on a container.”
The statement from appellant’s supervisor, Mr. Rodriguez, also contradicts appellant’s allegation
1

20 C.F.R. § 10.610 (2007); 5 U.S.C. § 8128(a) (2000).

2

Delphia Y. Jackson, 55 ECAB 373, 376 (2004).

3

Id.

4

Id.

5

Delphyne L. Glover, 51 ECAB 146, 147-48 (1999).

6

Id.

7

Michelle Kunzwiler, 51 ECAB 334, 335 (2000).

8

Id.

9

Id.

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that he was injured on August 19, 2005. Mr. Rodriguez indicated that appellant informed him on
April 26, 2005 that he injured his back “about a month or so ago” when he climbed on the
VACIS truck and pulled a muscle.
In addition to varying accounts of when his injury occurred, appellant initially omitted
certain details of the alleged employment incident. The April 26 and May 6, 2005 claim forms
suggest that appellant’s injury occurred while climbing on a VACIS truck. In an April 27, 2006
teleconference, appellant added that he was bending over attaching straps to a VACIS machine
when the injury occurred. During a June 5, 2006 teleconference, appellant further advised that
while stepping down off the VACIS truck his right leg gave out and he fell backwards.
Noticeably absent from Dr. Chang’s reports is any reference to appellant falling off the back of
the VACIS truck. It is also noteworthy that the history of injury reported by Dr. Sadai on either
April 1 or 25, 2005 is markedly different than the history noted by Dr. Chang on
August 27, 2005.
It may very well be that appellant is merely an inaccurate and incomplete historian.
Appellant’s various omissions and misstatements regarding when and how his injury arose cast
serious doubt on his claim to have injured his back in the performance of duty on
April 19, 2005.10 In both the August 17, 2006 and January 4, 2007 decisions, the Office clearly
explained its reason for rescinding acceptance of appellant’s claim. The Board finds that the
Office met its burden to rescind acceptance of appellant’s claim.
CONCLUSION
The Board finds that the Office properly rescinded acceptance of appellant’s claim for
lumbar strain and lumbar radiculopathy.

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Dr. Sadai’s unexplained recordkeeping errors and/or omissions also gives cause for concern.

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ORDER
IT IS HEREBY ORDERED THAT the January 4, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 18, 2007
Washington, DC

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
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hicksville, NY, Employer
__________________________________________

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

Docket No. 10-778
Issued: December 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 27, 2010 appellant filed a timely appeal from a September 25, 2009 decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained additional conditions causally related to the May 23, 2001 employment injury;
(2) whether the Office met its burden of proof to terminate appellant’s compensation benefits
effective October 8, 2008 on the grounds that she had no residuals of a May 23, 2001
employment injury; and (3) whether appellant established that she had any continuing
employment-related disability or condition after that date due to her accepted conditions. On
appeal, her attorney asserts that the accepted conditions should be expanded to include all
conditions outlined in the medical evidence provided by her treating physicians and further
asserted that she continued to suffer employment-related disability.

FACTUAL HISTORY
On May 23, 2001 appellant, then a 45-year-old city mail carrier, filed a traumatic injury
claim, alleging that she sustained back and arm injuries, headaches and high blood pressure when
her postal vehicle was rear-ended that day. She refused medical treatment that day, stopped
work on May 29, 2001 and did not return. The Office accepted that appellant sustained
employment-related lumbar and neck strains and she was placed on the periodic compensation
rolls.
In a May 29, 2001 report, Dr. Peter J. Lesniewski, a Board-certified orthopedic surgeon,
noted appellant’s complaints of cervical, thoracic and lumbar spine pain and headaches.
Physical examination demonstrated an unremarkable amount of spasm with restriction of motion.
Appellant was neurologically intact, with no evidence of myelopathy or radiculopathy. A
June 29, 2001 magnetic resonance imaging (MRI) scan of the cervical spine demonstrated
cervical kyphosis compatible with reflex muscle spasm; C3-4 posterior disc bulge; C4-5 through
C6-7 posterior disc herniations with ventral cerebrospinal fluid impression; at C5-6 disc
herniation increases right paracentrally with central canal stenosis at this level; right C4-5, right
C5-6 and right greater than left C6-7 foraminal narrowing; and findings suggesting C5 and C6
hemangiomas. A June 29, 2001 MRI scan of the lumbar spine demonstrated L3-4 through L5-S1
posterior disc bulging. On July 11, 2001 Dr. Lesniewski noted the MRI scan findings. He
continued to submit reports and advise that appellant could not return to work. On
September 20, 2001 Dr. Lesniewski advised that appellant had complaints of radiating lower
back pain and noted on October 2, 2001 that she continued to have problems with her back and
neck. Appellant was neurologically intact on physical examination with full motor and sensory
examinations.
In reports dated from June 13 to August 10, 2001, Dr. Kwan Jakobsen, a Board-certified
physiatrist, noted the history of injury and appellant’s complaints of neck, mid and low back
pain, headaches and occasional numbness and tingling. He provided physical examination
findings and diagnosed cervical disc herniation, lumbar disc bulge, paresthesias, weakness and
muscle spasm and advised that she could not work. A September 14, 2001 upper extremity
electromyographic (EMG) study demonstrated evidence of a mild right C5-6 radiculopathy.
Dr. Jakobsen continued to submit reports, noting physical examination findings of muscle spasm
and diminished range of motion, with an additional diagnosis of cervical radiculopathy and
advised that appellant could not work.
In reports dated June 21 to August 22, 2001, Dr. Steven Ender, a Board-certified
neurologist, noted the history of injury and appellant’s complaint of daily headaches. He
provided physical examination findings and diagnosed cervicogenic headaches, cervical
spondylosis, multiple levels of disc herniations, neural foraminal stenosis and lumbosacral
paraspinal muscle strain.
In attending physician’s reports dated July 16 and November 9, 2001, Dr. Jakobsen
diagnosed displaced intervertebral discs in the cervical and lumbar spine and checked a form box
“yes,” stating that the diagnosed conditions were caused while driving a mail delivery truck.
November 20, 2001 he stated that appellant sustained cervical disc herniations and lumbar disc
bulges on May 23, 2001 when she was rear-ended and opined that she could not work. In a

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report dated November 23, 2001, Dr. Jakobsen described his treatment, noted the MRI scan and
EMG study findings and her complaints of significant neck and back pain. He diagnosed
cervical disc herniation with radiculopathy, lumbar disc bulge, improving paresthesia, weakness
and muscle spasm and advised that, based on the history provided and initial physical
examination, appellant’s injuries were attributed to the May 23, 2001 motor vehicle accident.
On February 13, 2002 Dr. Jakobsen additionally diagnosed lateral epicondylitis and myofascial
pain syndrome and advised that, most likely, she would not be able to return to her letter carrier
duties but could perhaps return to a light-duty position in the future. He continued to submit
reports through October 28, 2002, noting that appellant had severe chronic pain and advised that
she could not return to work due to poor sitting, standing and walking tolerance.1
On October 9, 2002 appellant was referred to Dr. Richard S. Goodman, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a November 6, 2002 report,
Dr. Goodman noted his review of the medical record, the history of injury and appellant’s report
that she had not returned to work because of headaches, backaches and depression. He provided
physical examination findings of limited cervical and lumbar range of motion with symmetrical
sensory and motor examinations and a normal straight leg raising test. Dr. Goodman advised
that appellant had fully recovered from the employment-related cervical and lumbar strains and
that the diagnoses of cervical arthritis with multiple cervical herniated discs were due to
degenerative changes in the cervical spine and were not caused by the May 23, 2001 work injury.
He advised that she continued to have symptoms due to these nonwork-related conditions with a
poor prognosis and concluded that she could return to sedentary work. In an attached work
capacity evaluation, Dr. Goodman advised that appellant could sit four hours daily; stand, walk,
reach and twist for two hours; twist, push and pull for one hour, with a 15-pound weight
restriction.
In a September 23, 2003 report, Dr. Lesniewski noted findings of tenderness and spasm
on examination of the cervical and lumbar spine with diminished range of motion and full motor
and sensory examinations. He diagnosed cervical herniations and spondylosis and lumbar
spondylosis and advised that the conditions were related to the May 2001 motor vehicle accident
with significant occupational disability. In reports dated October 25 and 31 and November 4,
2004, Dr. Lesniewski reported no change in appellant’s situation or examination, advised that
maximum medical improvement had been reached and that she could not work. In a work
capacity evaluation dated January 11, 2006, he advised that she had too many restrictions to
return to work, stating that she could sit, walk and stand 20 to 30 minutes at a time; could not
twist, bend, stoop, squat or kneel; and could push, pull and lift 10 pounds. Dr. Lesniewski
advised that appellant required 10- to 15-minute breaks every 20 to 30 minutes. In reports dated
August 16 and 18, 2006, he provided physical examination findings of restricted cervical motion
of the neck and lumbar spine. Motor and sensory examination were full, with no atrophy.
Dr. Lesniewski provided an August 18, 2006 work capacity evaluation, in which he reiterated his
restrictions, stating they were permanent. On August 28, 2007 he again advised that appellant’s
condition had not changed, referred to the physical findings of the August 16, 2006 examination
and attached a work capacity evaluation in which he reiterated his restrictions and advised that

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Appellant also submitted unidentified medical reports. She received a third-party settlement.

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she was totally disabled. On March 20, 2008 Dr. Lesniewski provided a work capacity
evaluation duplicating his previous restrictions.
On June 10, 2008 the Office referred appellant to Dr. P. Leo Varriale, Board-certified in
orthopedic surgery, for a second opinion evaluation. In a June 25, 2008 report, Dr. Varriale
noted the history of injury, his review of the medical record and appellant’s complaints of
nonradiating neck and lower back pain. Cervical and lumbar spine examination demonstrated no
spasm with some decreased range of motion, full strength and no sensory deficits. Straight leg
raising test was negative bilaterally. Dr. Varriale diagnosed resolved cervical and lumbosacral
strain and preexisting degenerative disc disease of the cervical and lumbar spine. He advised
that appellant had reached maximum medical improvement and could not return to her regular
job as a city carrier due to chronic neck and back pain caused by the preexisting degenerative
disc disease and that she could work six hours of sedentary work daily with lifting restricted to
20 pounds. In an attached work capacity evaluation, Dr. Varriale advised that she could sit, walk
and stand for two hours; bend and stoop for one hour; and push, pull and lift 50 pounds for two
hours daily. In a supplemental report dated August 12, 2008, he advised that there were no
objective findings of cervical and lumbosacral strain.
On September 4, 2008 the Office proposed to terminate appellant’s compensation
benefits on the grounds that the medical evidence, as characterized by Dr. Varriale’s opinion,
established that she no longer suffered residuals or disability due to the accepted conditions. In a
September 15, 2008 report, Dr. Alfred F. Faust, a Board-certified orthopedist, noted appellant’s
report that she was injured when her vehicle was hit from the rear and pushed one block forward
and her complaints of chronic neck and back pain and headaches. He advised that cervical
examination was normal with intact sensation and back demonstrated normal motor strength and
sensation. Dr. Faust diagnosed degenerative disc disease of the cervical and lumbar spines,
lumbago and cervicalgia. He stated that appellant had continued difficulty since the 2001
accident that interfered with activities of daily living and employment and advised that she had
residual limitations due to preexisting conditions.
By decision dated October 8, 2008, the Office finalized the termination. On June 29,
2009 appellant, through her attorney, requested reconsideration. He asserted that the Office
should expand the accepted conditions to include all conditions outlined in the medical evidence
and that the Office did not properly terminate appellant’s compensation benefits because a
conflict in medical evidence existed. In an undated report, Dr. Jakobsen advised that appellant’s
cervical flexion was within normal limits with limited extension and rotation. Lumbar range of
motion was improved. In a February 2, 2009 report, Dr. Dwiref Mehta, a Board-certified
surgeon, noted that appellant sustained neck and lower back injuries in a motor vehicle accident
on May 23, 2001 and his review of Dr. Lesniewski’s reports and the MRI scan reports dated
July 2, 2001. He stated that he first examined appellant on November 28, 2008 for complaints of
neck pain radiating to the right upper extremity and low back pain radiating to the right lower
extremity. Physical examination demonstrated tenderness, spasm and decreased range of motion
of the cervical and lumbar spines with a positive straight leg raising test. Strength was 4/5 in
both lower extremities and sensation was decreased in the C5-6 dermatomes of the right upper
extremity. Dr. Mehta diagnosed cervical disc herniation and radiculopathy and lumbar posterior
disc bulges at L3-4 through L5-S1 with radiculopathy. He advised that appellant was totally
disabled, stating that activity could cause severe radiating pain in the neck and lower back “and

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most likely have exacerbation of her symptoms due [to] the job[-]related accident of
May 23, 2001.” An unsigned and unidentified psychiatric evaluation dated April 1, 2009,2 noted
that appellant, who had not worked since a motor vehicle accident in May 2001, was first seen
on November 19, 2008 with a history of partial mastectomy due to breast cancer in July 2008
and that she had recently completed intravenous chemotherapy. Appellant’s complaints of neck
and back pain and chronic headaches were reported.
By decision dated September 25, 2009, the Office denied modification of the October 8,
2008 decision. It discussed appellant’s arguments on reconsideration and found that her
compensation benefits were properly terminated based on Dr. Varriale’s well-rationalized report
and that the subsequently submitted medical evidence was insufficient to establish that she had
any continuing disability. The Office further found that the weight of the medical evidence
showed that the accepted conditions had resolved and that additional complaints were found to
be unrelated to the May 23, 2001 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Office regulations at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 In order to determine whether an employee sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component is whether the employee actually
experienced the employment incident that is alleged to have occurred. The second component is
whether the employment incident caused a personal injury and generally this can be established
only by medical evidence.4
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that a claimed medical condition was caused or adversely affected by
employment factors. This burden includes the submission of a detailed description of the
employment factors or conditions, which the claimant believes caused or adversely affected the
condition or conditions for which compensation is claimed. If a claimant does establish an
employment factor, she must submit medical evidence showing that a medical condition was
caused by such a factor.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
2

Appellant’s attorney asserted that the report was prepared by Dr. Juliana Kanji, a psychiatrist.

3

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

4

Tracey P. Spillane, 54 ECAB 608 (2003).

5

V.C., 59 ECAB 137 (2007).

6

D.G., 59 ECAB 734 (2008).

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is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 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 causal relationship.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that she
sustained additional conditions caused by the May 23, 2001 motor vehicle accident when her
postal vehicle was rear-ended. To establish causal relationship, a claimant must submit a
physician’s report in which the physician reviews the employment factors identified as causing
the claimed condition and, taking these factors into consideration as well as findings upon
examination, states whether the employment injury caused or aggravated the diagnosed
conditions and presents medical rationale in support of his or her opinion.9
The accepted conditions are cervical and lumbar strains. Regarding any additional
orthopedic conditions, while the record contains MRI scan evidence of cervical disc herniations
and lumbar disc bulges, the medical record does not contain sufficient rationalized explanation
that these conditions were caused or aggravated by the May 23, 2001 motor vehicle accident.
Neither Dr. Ender nor Dr. Mehta provided an opinion regarding the cause of any diagnosed
condition and 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.10
In reports dated July 16 and November 9, 2001, Dr. Jakobsen checked a form box “yes”
and stated that the diagnosed conditions of displaced intervertebral discs were caused while
driving a postal vehicle. When a physician’s opinion on causal relationship consists only of
checking “yes” to a form question, without explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim.11 While Dr. Jakobsen also advised in
reports dated November 20 and 23, 2001 that, based on the history provided and his initial
physical examination, the cervical disc herniations and lumbar disc bulges were caused by the
May 23, 2001 motor vehicle accident, he did not provide any medical rationale explaining the
mechanics of how appellant’s cervical disc herniations and lumbar disc bulges were caused or
aggravated by the May 23, 2001 employment injury.

7

Id.

8

Roy L. Humphrey, 57 ECAB 238 (2005).

9

J.M., 58 ECAB 303 (2007).

10

Willie M. Miller, 53 ECAB 697 (2002).

11

D.D., 57 ECAB 734 (2006).

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In a September 23, 2003 report, Dr. Lesniewski diagnosed cervical herniations and
spondylosis and lumbar spondylosis and advised that the conditions were related to the
May 2001 motor vehicle accident with significant occupational disability. He too, did not
sufficiently explain how these numerous disc herniations and bulges were caused or aggravated
by the employment-related motor vehicle accident. As neither physician submitted sufficient
rationale in support of his conclusions, their reports are insufficient to establish that additional
cervical and lumbar conditions are employment related.12
Dr. Faust, who examined appellant in September 2008, noted the history of injury and her
complaints of chronic neck and back pain and headaches and her report that she was injured
when her vehicle was hit from the rear. Motor strength and sensory examinations were normal.
While Dr. Faust diagnosed degenerative disc disease of the cervical and lumbar spines, lumbago
and cervicalgia and advised that appellant had continued difficulty since the 2001 accident that
interfered with activities of daily living and employment, he also stated that she had residual
limitations due to preexisting conditions. The Board finds this report contradictory in regard to
causal relationship and while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The
opinion should be expressed in terms of a reasonable degree of medical certainty.13 Dr. Faust’s
report is thus insufficient to meet appellant’s burden to establish that additional conditions were
caused by the May 23, 2001 employment injury.
The Office referral physicians, Dr. Goodman, who examined appellant in
November 2002, and Dr. Varriale, who provided a second opinion evaluation on June 25, 2008,
were in agreement that the accepted cervical and lumbar strains had resolved and the cervical
and lumbar degenerative disc disease was preexisting and not caused by the May 23, 2001 motor
vehicle accident. A claimant has the burden of establishing by the weight of the reliable,
probative and substantial evidence that a claimed medical condition was caused or adversely
affected by employment factors.14 The Board finds that the weight of the medical opinion
evidence rests with the opinions of Drs. Goodman and Varriale regarding whether appellant had
additional orthopedic conditions causally related to the May 23, 2001 employment injury and she
did not submit sufficient rationalized evidence to create a conflict in medical evidence.15
In regard to any claim for an employment-related emotional condition, the only evidence
submitted is an unsigned and unidentified psychiatric evaluation dated April 1, 2009. While
appellant’s attorney asserted that this report was prepared by Dr. Kanji, a psychiatrist, this report

12

J.M., supra note 9.

13

Ricky S. Storms, 52 ECAB 349 (2001).

14

V.C., supra note 5.

15

In situations where there are 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 on a proper factual background, must be given special weight. Manuel Gill,
52 ECAB 282 (2001).

7

does not constitute competent medical evidence because it cannot be identified as having been
prepared by a physician as defined by the Federal Employees’ Compensation Act.16
Thus, as discussed above, contrary to appellant’s assertions on appeal, she did not
establish that she sustained additional conditions caused, aggravated or a consequence of the
May 23, 2001 employment injury.17
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.18 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.19
ANALYSIS -- ISSUE 2
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on October 8, 2008. As noted above, the accepted conditions in this case
are cervical and lumbar disc bulges and an emotional condition have not been accepted as
employment related.
The medical evidence most contemporaneous with the October 8, 2008 termination
includes Dr. Lesniewski’s August 28, 2007 report when he advised that appellant’s condition had
not changed and referenced the physical findings of his August 16, 2006 report.20
Dr. Lesniewski also provided a March 20, 2008 work capacity evaluation in which he duplicated
his previous restrictions. It is unclear whether he examined appellant after August 16, 2006 and
generally, findings on examination are needed to justify a physician’s opinion that an employee
is disabled from work.21 In a June 25, 2008 report, Dr. Varriale advised that cervical and lumbar
16

Vickey C. Randall, 51 ECAB 357 (2000).

17

In discussing the range of compensable consequences, once the primary injury is causally connected with the
employment, Larson notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based
upon the concepts of direct and natural results and of claimant’s own conduct as an independent intervening cause.
The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury,
is compensable if it is the direct and natural result of a compensable primary injury. Larson, The Law of Workers’
Compensation § 10.01 (December 2000); see Charles W. Downey, 54 ECAB 421 (2003). In the case at hand, there
is no medical evidence that contains an opinion that appellant’s cervical disc herniations and lumbar disc bulges
were aggravated by the May 23, 2001 employment injury.
18

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

19

Id.

20

The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence.
S.S., 59 ECAB 315 (2008).
21

Laurie S. Swanson, 53 ECAB 517 (2002).

8

spine examination demonstrated no spasm, some decreased range of motion, full strength and no
sensory deficits with a negative straight leg raising test bilaterally. He diagnosed resolved
cervical and lumbosacral strain and preexisting degenerative disc disease of the cervical and
lumbar spine and advised that appellant had reached maximum medical improvement. While
Dr. Varriale advised that appellant could not return to her regular job as a city carrier, he stated
that this was due to chronic neck and back pain caused by the preexisting degenerative disc
disease and not due to the accepted conditions. In a supplemental report dated August 12, 2008,
he advised that there were no objective findings of cervical and lumbosacral strain.
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion are facts, which determine the weight to be given to each individual
report.22 The Board finds that the Office properly determined that the weight of the medical
opinion evidence rested with the opinion of Dr. Varriale who provided a comprehensive report in
which he outlined examination findings and provided a rationalized explanation for his opinion
that appellant’s accepted conditions of lumbar and neck strains had resolved. The Office
therefore met its burden of proof to terminate her compensation benefits on October 8, 2008.
LEGAL PRECEDENT -- ISSUE 3
As the Office met its burden of proof to terminate appellant’s compensation benefits on
October 8, 2008, the burden shifted to her to establish that she had any continuing disability
causally related to her accepted right upper extremity injury.23 To establish a causal relationship
between the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.24 The issue of whether a claimant’s disability
is related to an accepted condition is a medical question which must be established by a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disability is causally related to employment factors and supports that conclusion with
sound medical reasoning.25
ANALYSIS -- ISSUE 3
The Board finds that appellant submitted insufficient medical evidence with her June 29,
2009 reconsideration request to establish that she continued to be disabled after October 8, 2008
due to the accepted lumbar and neck strains. With her reconsideration request, appellant
submitted an undated report, in which Dr. Jakobsen did not comment on whether she continued
to be disabled from work. Dr. Jakobsen’s report is therefore of diminished probative value on
22

Michael S. Mina, 57 ECAB 379 (2006).

23

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

24

Jennifer Atkerson, 55 ECAB 317 (2004).

25

Sandra D. Pruitt, 57 ECAB 126 (2005).

9

the issue of continued disability. While Dr. Mehta, who provided a February 2, 2009 report,
noted physical examination findings and diagnosed cervical disc herniation and lumbar disc
bulges with radiculopathy and advised that appellant was totally disabled, he did not explain how
the accepted conditions of cervical and lumbar strain caused her disability. As discussed above,
Dr. Varriale provided a comprehensive report in which he outlined examination findings and
provided a rationalized explanation for his opinion that she accepted conditions of lumbar and
neck strains had resolved and that any disability was due to preexisting degenerative disc
disease.
Under the Act, 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
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 the Act.26 Dr. Mehta’s report is therefore
insufficient to establish that these conditions are employment related27 or to create a conflict with
the well-rationalized report of Dr. Varriale. The medical evidence in this case is insufficient to
establish that appellant continues to have work-related disability due to the accepted cervical and
lumbar strains after October 8, 2008 due to the accepted conditions.
CONCLUSION
The Board finds that appellant failed to establish that other diagnosed conditions were
caused by the May 23, 2001 employment injury, that the Office met its burden of proof to
terminate her compensation benefits on October 8, 2008 and that she failed to meet her burden of
proof to establish that she had any disability after October 8, 2008 causally related to the
accepted lumbar and neck strains.

26

20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

27

Jennifer Atkerson, supra note 24.

10

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
SEYMOUR JOHNSON AIR FORCE BASE, NC,
Employer
__________________________________________

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

Docket No. 20-1101
Issued: January 26, 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 April 30, 2020 appellant filed a timely appeal from an April 6, 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 6, 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left shoulder
condition causally related to the accepted March 27, 2019 employment incident.
FACTUAL HISTORY
On July 2, 2019 appellant, then a 28-year-old aircraft ordnance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on March 27, 2019 he sustained left shoulder contusion
when one of the munitions he was unloading from an aircraft dropped and swung out, striking his
shoulder while in the performance of duty. He stopped work on March 27, 2019 and returned to
work on March 28, 2019.3
In support of his claim, appellant submitted an official copy of his aircraft ordnance
systems mechanic position description and a July 8, 2018 notification of personnel action (Form
SF-50).
By development letter dated July 15, 2019, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of medical evidence
necessary to establish his claim. OWCP afforded him 30 days to submit the necessary evidence.
In a March 27, 2019 authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized appellant to seek medical care. In an attending physician’s
report, Part B of Form CA-16, of even date, John Delucas, a certified physician assistant, reported
that appellant sustained a left shoulder injury while loading an aircraft at work. He indicated that
appellant had no prior injury and diagnosed left shoulder contusion.
In a May 30, 2019 medical report, Dr. David M. Dare, an orthopedic surgery specialist,
noted that appellant presented with shoulder pain. He reported that his left shoulder was struck by
a heavy object while unloading a jet at work. Appellant recounted immediate shoulder pain after
the incident. Dr. Dare indicated that appellant received a subacromial steroid injection, antiinflammatories, and underwent physical therapy, without any relief. He conducted a physical
examination and reviewed a magnetic resonance imaging (MRI) scan of the left shoulder, which
revealed some superficial flaying on the articular side of the supraspinatus and irregularity of the
posterior and posterior inferior labrum with a small cyst formation. Dr. Dare diagnosed left
shoulder pain and possible cervical radiculopathy.
Left shoulder arthrograms dated July 10 and 19, 2019 revealed tearing of the posterior and
inferior glenoid labrum, scarring of the posterior band, as well as intact rotator cuff tendons and
posterior acromial downsloping.
In a July 26, 2019 witness statement, S.P, appellant’s coworker, indicated that on
March 27, 2019, during weapons standardization load training, he and appellant were unloading
3

In an undated work status report (Form CA-3), the employing establishment informed OWCP that appellant had
stopped work on March 27, 2019 after filing his claim and returned to work without any restrictions on
March 28, 2019.

2

an aircraft when the munition dropped, shifted, and hit appellant in the shoulder. He attested that
this incident knocked appellant 5 to 10 feet to the outer side of the fuselage, causing him to land
on his back. Appellant was removed from the loading pad while the munition was placed back on
the storage trailer. S.P. thereafter notified their supervisor, who instructed him to drive appellant
to urgent care.
In a July 26, 2019 medical report, Dr. Dare indicated that appellant’s symptoms included
popping, grinding, loss of motion, tingling, burning, and aching. He noted that he had no prior
surgery or relevant medical history. Dr. Dare indicated that appellant elected to proceed with
surgery. In a duty status report (Form CA-17) of even date, Dr. Dare diagnosed tear of the
posterior and inferior labrum.
In an August 16, 2019 work status note, Dr. Dare provided work restrictions.
By decision dated August 23, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish a medical diagnosis
causally related to the accepted March 27, 2019 employment incident. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
A May 8, 2019 MRI scan of the left upper extremity joint revealed partial thickness
undersurface tearing/fraying of much of the supraspinatus at the critical zone and extending
distally. It demonstrated no full-thickness rotator cuff tear, but indicated probable posterior
inferior labral tear with possible tiny paralabral cyst.
Appellant also submitted an undated Occupational Safety and Health Administration
(OSHA) Injury and Illness Incident Report (OSHA Form 301).
In an August 27, 2019 statement, the employing establishment confirmed that appellant
was injured on March 27, 2019 while in the performance of duty.
In an August 27, 2019 medical report, Dr. Dare diagnosed a posterior labral tear and noted
that appellant developed this condition after being struck by a heavy object at work. He opined,
given appellant’s mechanism of injury and subsequent pain, that it was “certainly feasible” that
his injury was sustained at the time of the employment incident.
On September 4, 2019 appellant requested reconsideration.
Appellant subsequently submitted an unsigned Form CA-17 dated July 26, 2019.
In a November 4, 2019 memorandum, Dr. Dare reiterated that appellant’s injury occurred
on March 27, 2019 when he was struck by an object while unloading a jet at work. He diagnosed
other left shoulder articular cartilage disorders recurrent left shoulder dislocation. Dr. Dare
indicated that appellant underwent left shoulder arthroscopic surgery on November 4, 2019. He
provided work restrictions.
By decision dated November 26, 2019, OWCP affirmed, as modified, the August 23, 2019
decision, finding that, while the medical evidence of record was sufficient to establish the medical

3

component of fact of injury, it was insufficient to establish that appellant’s diagnosed conditions
were causally related to the accepted March 27, 2019 employment incident.
On January 7, 2020 appellant requested reconsideration.
In a July 2, 2019 medical report, Dr. Dare noted that appellant was previously seen for left
shoulder pain after a work-related injury on March 27, 2019. He conducted a physical examination
and diagnosed left shoulder pain with possible biceps labral pathology with some possible
overlying impingement.
Appellant submitted November 4, 2019 discharge instructions.
In a November 6, 2019 attending physician’s report (Form CA-20), Dr. Dare diagnosed
other articular cartilage disorders and checked a box marked “Yes” to indicate that appellant’s
conditions were caused or aggravated by an employment activity.
In a November 20, 2019 attending physician’s statement of disability, Dr. Dare diagnosed
other articular cartilage disorders of the left shoulder and recurrent dislocation of the left shoulder.
He advised that appellant could not drive while wearing a sling.
In a December 19, 2019 letter, Dr. Dare opined that appellant’s left shoulder injury was
“more likely than not” caused by the accepted March 27, 2019 employment incident.
By decision dated April 6, 2020, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
4

Supra note 1.

5

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).
6

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).
7
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).

4

sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
ANALYSIS
The Board finds that appellant has met his burden of proof to establish a left shoulder
contusion causally related the accepted March 27, 2019 employment incident.
On the date of injury, appellant was seen by Mr. Delucas, a certified physician assistant.
In an attending physician’s report, Part B of Form CA-16, Mr. Delucas reported that appellant had
sustained a left shoulder injury while loading an aircraft at work. He indicated that appellant had
no prior injury and diagnosed left shoulder contusion.
As the evidence of record establishes that appellant’s employment incident resulted in a
visible injury, the Board finds that appellant has met his burden of proof to establish a left shoulder
contusion causally related to the accepted March 27, 2019 employment incident.11
The Board further finds, however, that the medical evidence of record is insufficient to
establish additional left shoulder conditions causally related to the accepted employment incident.
In an August 27, 2019 medical report, Dr. Dare opined, given appellant’s mechanism of
injury and subsequent pain, that it was certainly feasible that he sustained a posterior labral tear
when he was struck by a heavy object at work. While he referenced a work-related injury, Dr. Dare
did not offer any medical rationale sufficient to explain how or why he believed the accepted
March 27, 2019 employment incident could have resulted in or contributed to the posterior labral
tear. The Board has consistently held that, if the physician is opining that work activity caused a
diagnosed medical condition, there must be a clear explanation as to the mechanism of injury and
8

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).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020); S.K., Docket No. 18-1411 (issued
July 22, 2020).

5

how the work activity caused the diagnosed medical condition.12 Without explaining how being
struck by a heavy object in the left shoulder caused or contributed to the diagnosed condition, this
report is of limited probative value.13
Dr. Dare, in his December 19, 2019 letter, opined that appellant’s left shoulder injury was
“more likely than not” caused by the accepted March 27, 2019 employment incident. However,
his opinion is speculative in nature. The Board has held that medical opinions that are speculative
and equivocal are of diminished probative value.14 Moreover, Dr. Dare still failed to explain with
rationale how the accepted March 27, 2019 employment incident caused a diagnosed medical
condition. The Board has held that a medical report lacking a firm diagnosis and a rationalized
medical opinion regarding causal relationship is of no probative value15 Therefore, Dr. Dare’s
December 19, 2019 letter is insufficient to establish appellant’s claim.
In a November 6, 2019 Form CA-20, Dr. Dare diagnosed other articular cartilage disorders
and checked a box marked “Yes” indicating that appellant’s conditions were caused or aggravated
by an employment activity. The Board has held, however, that medical evidence on causal
relationship that consists only of a physician checking “Yes” to a medical form question on
whether the claimant’s condition was related to the history given is of little probative value.16
Although the Form CA-20 contains a medical diagnosis, without any explanation or rationale for
the conclusion reached, this report is insufficient to establish causal relationship.17
In a July 26, 2019 Form CA-17, Dr. Dare diagnosed tear of the posterior and inferior
labrum. In a November 4, 2019 memorandum and a November 20, 2019 attending physician’s
statement of disability, he noted that appellant was struck by an object at work while unloading a
jet. Dr. Dare diagnosed other left shoulder articular cartilage disorders and recurrent left shoulder
dislocation. He, however, did not provide a cause of his diagnosed conditions. The Board has
held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.18 Thus, these reports are also
insufficient to establish appellant’s claim.
In a May 30, 2019 medical report, Dr. Dare diagnosed left shoulder pain and possible
cervical radiculopathy. Likewise, in his July 2, 2019 medical report, he diagnosed left shoulder
12

A.S., Docket No. 16-1028 (issued August 17, 2016).

13

See A.P., Docket No. 19-0224 (issued July 11, 2019).

14

H.A., Docket No. 18-1455 (issued August 23, 2019).

15

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

16

S.F., Docket No. 16-1276 (issued October 10, 2017); N.L., Docket No. 17-0454 (issued April 6, 2017); Lillian M.
Jones, 34 ECAB 379, 381 (1982).
17
N.V., Docket No. 17-0107 (issued July 3, 2017); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box
marked “Yes” in a form report, without additional explanation or rationale, is insufficient to establish causal
relationship).
18
See R.T., Docket No. 19-1346 (issued December 4, 2019); L.B., Docket No 18-0533 (issued August 27, 2018);
Willie M. Miller, 53 ECAB 697 (2002).

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pain with possible biceps labral pathology with some possible overlying impingement. The Board
has held that pain is a symptom and not a compensable medical diagnosis.19 As noted, medical
report lacking a firm diagnosis and a rationalized medical opinion regarding causal relationship is
of no probative value.20 As such, these medical reports are insufficient to meet appellant’s burden
of proof.
In a July 26, 2019 medical report, Dr. Dare indicated that appellant had no prior surgery or
relevant medical history. Similarly, in his August 16, 2019 work status note, he provided work
restrictions. However, Dr. Dare failed to diagnose a medical condition.21 Therefore, these report
and note are also insufficient to establish appellant’s claim.
Appellant also submitted a July 26, 2019 Form CA-17 containing no signature. The Board
has held that reports that are unsigned or bear an illegible signature lack proper identification and
cannot be considered probative medical evidence as the author cannot be identified as a
physician.22 Therefore, this report has no probative value and is insufficient to establish
appellant’s claim.
Lastly, the record contains diagnostic reports dated May 8, July 10 and 19, 2019. The
Board has held that diagnostic tests, standing alone, lack probative value as they do not provide an
opinion on causal relationship between the traumatic incident and the diagnosed conditions.23
These reports are, therefore, insufficient to establish the claim.
As appellant has not submitted rationalized medical evidence establishing additional left
shoulder conditions causally related to the accepted March 27, 2019 employment incident, the
Board finds that he has not met 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 established a left shoulder contusion causally related to
the accepted March 27, 2019 employment incident. The Board further finds, however, that

19

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

20

Supra note 16.

21

Id.

22

R.L., Docket No. 20-0284 (issued June 30, 2020); M.A., Docket No. 19-1551 (issued April 30, 2020); T.O.,
Docket No. 19-1291 (issued December 11, 2019).
23
S.M., Docket No. 20-0241 (issued August 25, 2020); K.S., Docket No. 19-1623 (March 19, 2020); M.J., Docket
No. 19-1287 (issued January 13, 2020).

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appellant has not met his burden of proof to establish other left shoulder conditions causally related
to the accepted March 27, 2019 employment incident.24
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part.
Issued: January 26, 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

24

The Board notes that the employing establishment issued appellant a signed authorization for examination and/or
treatment (Form CA-16) authorizing medical treatment. The Board has held that where an employing establishment
properly executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an
employment-related injury, it creates a contractual obligation which does not involve the employee directly to pay the
cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300 and 10.304;
R.W., Docket No. 18-0894 (issued December 4, 2018) Tracy P. Spillane, 54 ECAB 608 (2003).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, NORTH HOUSTON
PROCESSING & DISTRIBUTION CENTER,
Houston, TX, Employer
__________________________________________

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

Docket No. 08-47
Issued: September 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2007 appellant timely appealed the July 19, 2007 merit decision of the
Office of Workers’ Compensation Programs, which affirmed the termination of compensation
and medical benefits. 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 properly terminated appellant’s compensation and
medical benefits effective October 1, 2006.
FACTUAL HISTORY
Appellant, a 49-year-old mail processing equipment mechanic, has an accepted claim for
acute bronchitis (16-2055375), which arose on or about March 20, 2003. He also has an
accepted claim for aggravation of rhinitis (16-2067050), with a November 5, 2003 date of injury.
These two claims have been combined under claim number 16-2055375. Appellant stopped

work on August 28, 2004 and has yet to return.
compensation rolls effective September 5, 2004.1

The Office placed him on the periodic

Dr. Douglas W. Jenkins, an Office referral physician, examined appellant on
February 23, 2005.2 His clinical observations included difficulty in full inhalation, exhalation
and frequent cough. This was the extent of appellant’s current findings.3 Dr. Jenkins indicated
that, because appellant had been off work for approximately six months, any allergic
manifestation from work would have resolved by now. He further noted that there was no
indication that appellant’s work environment contained materials that would cause a permanent
change in respiratory function. Dr. Jenkins reiterated that appellant’s “[w]ork injury would have
resolved by this time.” He conceded that a dusty work environment “may exacerbate
[appellant’s] allergic symptoms.” However, Dr. Jenkins characterized appellant’s allergic
disease as “a condition of life and not related to work.” He advised that appellant was capable of
working an eight-hour day, however, he recommended that appellant’s work area consist of a
relatively “‘clean environment.’”
In a January 13, 2006 report, Dr. Thornton L. Kidd, a Board-certified allergist, noted that
appellant’s allergy tests showed definite positive reactions to numerous trees used in the making
of paper products. He further stated that appellant could not perform the essential functions of
his job if exposed to paper or similar dust. Dr. Kidd also noted that retraining appellant to work
in a different area would not be helpful if paper products remained in use, such as in shredders
and copiers. He also advised that because of appellant’s reaction to mold, he should consider a
three-month trial in a dryer climate.
Dr. Ben H. Echols, an internist and gastroenterologist, treated appellant for both of his
accepted conditions. He had also referred appellant to Dr. Kidd. The Office asked Dr. Echols to
review and comment on Dr. Jenkins’ February 23, 2005 report. In January 2006, Dr. Echols
provided a summary of appellant’s medical care dating back to March 19, 2003. He explained
that each doctor that had evaluated appellant, including Dr. Jenkins, came to the same conclusion
that paper dust exacerbated appellant’s allergic symptoms and because he was allergic to paper
dust, appellant should no longer be in that environment. Dr. Echols concluded that appellant was
unable to perform his duties at the employing establishment because of the dusty environment.
He further stated that appellant would continue to be sick and continue with respiratory
difficulties if he was placed back in this environment. In a March 21, 2006 report, Dr. Echols
reiterated that appellant was unable to work in an environment where paper dust was present. In
an accompanying work capacity evaluation (Form OWCP-5b), Dr. Echols indicated that
appellant was unable to work at all.
1

Effective August 2, 2006, appellant elected to receive benefits from the Office of Personnel Management rather
than continue receiving wage-loss compensation under the Federal Employees’ Compensation Act.
2

Dr. Jenkins is a Board-certified internist with a subspecialty in pulmonary disease.

3

The pulmonary function studies (PFS) Dr. Jenkins administered as part of his evaluation were deemed
insufficient for interpretation because of appellant’s effort. He also reviewed a previous study from February 8,
2005, which he noted was limited by coughing and appellant’s August 2004 PFS was reportedly normal. Because of
the noted difficulty with spirometry, Dr. Jenkins administered a February 23, 2005 arterial blood gas study, which
revealed a normal pCO2 and normal pH and a borderline normal pO2.

2

The Office declared a conflict of medical opinion and referred appellant for an impartial
medical examination with Dr. Jeremiah J. Twomey, a Board-certified internist, who examined
appellant on July 17, 2006, and found the examination “entirely normal.” Appellant reported
that in March 2003, his workstation was moved to the general work area of the postal facility
where he was in close proximity to an overhead conveyor belt that transported packages. Paper
dust reportedly fell from the conveyor belt in large quantities. According to appellant, airborne
particles were visible in sunlight and dust accumulated on top of his desk. He claimed that his
respiratory symptoms worsened after his workstation was moved. These symptoms included
postnasal drainage, tightness in the chest, wheezing, hoarseness and an unproductive cough.
Appellant reported that his symptoms improved while he was away from the workplace, like
when he went on vacations. Dr. Twomey noted that appellant’s present level of symptoms
varied. Current symptoms were limited to tightness in the chest, and there was no reported upper
airways congestion.
On physical examination, appellant demonstrated no respiratory distress, he did not
cough or sneeze, was not hoarse and there were no signs of nasal drip. Dr. Twomey also
reported that appellant’s chest was normal. According to him, there was no current diagnosis.
He characterized the examination as “entirely normal.” Dr. Twomey also stated that while
appellant “may have some manifestation to paper products,” the extent of his clinical expression
could not be determined from “today’s evaluation.” Additionally, he questioned Dr. Kidd’s
correlation between appellant’s allergy to trees and his reported reaction to dust from woodbased paper products. Dr. Twomey noted that appellant had no history of an allergic reaction
when exposed to trees in the everyday outdoor environment. Thus, he questioned whether
appellant’s allergic reaction was due to exposure to paper products rather than other workplace
allergens such as dust mites.
In a supplemental report dated August 2, 2006, Dr. Twomey reiterated that appellant had
no definitive evidence of ongoing symptoms or physical findings. He again questioned whether
appellant’s allergic reaction was to paper dust rather than dust mites. Dr. Twomey recommended
that appellant’s work area be moved to a less dusty environment to avoid the possibility of
recurrent discomfort from allergic rhinitis. He also noted that appellant reached maximum
medical improvement and there was no justification for the two medications currently being
prescribed appellant for reactive airways disease.
The Office issued a notice of proposed termination of benefits on August 24, 2006.4
Appellant responded on September 16, 2006, noting, among other things, that Dr. Twomey was
abrasive, rude and a “quack.”5 He also submitted a September 15, 2006 report from Dr. Echols
who stated that appellant had been diagnosed with reactive airway disease, which still persisted.
Dr. Echols also indicated that appellant was to avoid exposure to paper dust and continue
treatment with his present medications, Advair and Xopenex.

4

Appellant had elected to receive OPM benefits a few weeks prior to the issuance of the pretermination notice.
Supra note 1.
5

Appellant was actively involved in the selection process for an independent medical examiner, and in fact, he
previously consented to Dr. Twomey’s participation as the referee examiner.

3

By decision dated September 27, 2006, the Office terminated appellant’s wage-loss
compensation and medical benefits effective October 1, 2006. Appellant subsequently requested
an oral hearing, which was held on March 27, 2007. In a July 19, 2007 decision, the hearing
representative affirmed the Office’s September 27, 2006 decision terminating benefits.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 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.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.8 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.9
ANALYSIS
The Office found a conflict of medical opinion on the issue of whether there were
continuing residuals of his March 20 and November 5, 2003 employment injuries. On one side
of the conflict, Dr. Echols was of the opinion that appellant was disabled from all work. He had
previously linked appellant’s respiratory condition to exposure to paper dust in the workplace.
Dr. Echols continued to find that appellant was unable to work in an environment where paper
dust was present. Dr. Jenkins, an Office referral physician, found that appellant was able to work
an eight-hour day, but in a “‘clean environment,’” such as office or computer work. He further
indicated that, given appellant’s six-month absence from work, any allergic manifestation from
work would have resolved by the time he examined appellant in February 2005. Dr. Jenkins also
noted there was no evidence that appellant’s work environment contained materials that would
cause a permanent change in his respiratory function. He unequivocally stated that appellant’s
“[w]ork injury would have resolved by this time.” Dr. Jenkins characterized appellant’s allergic
disease as “a condition of life and not related to work.”
In view of the conflicting opinions of Drs. Echols and Jenkins, the Office properly
referred appellant to Dr. Twomey for an impartial medical evaluation.10 Dr. Twomey questioned
the premise that appellant’s allergy to trees manifested itself in the form of a workplace reaction
to wood-based paper products. He posited that if this were the case then why was there no
6

Curtis Hall, 45 ECAB 316 (1994).

7

Jason C. Armstrong, 40 ECAB 907 (1989).

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

The Act provides that if there is disagreement between the physician making the examination for the Office and
the employee’s physician, the Office shall appoint a third physician who shall make an examination. 5 U.S.C.
§ 8123(a) (2000); Shirley L. Steib, 46 ECAB 309, 317 (1994).

4

evidence of an allergic reaction when appellant was exposed to trees in the everyday outdoor
environment. Dr. Twomey surmised that dust mites or other allergens were likely causes for the
airway irritation appellant claimed to have experienced at his workstation. But regardless of the
specific workplace allergens appellant had previously been exposed to, Dr. Twomey found that
appellant’s current examination was “entirely normal.” He also noted that appellant had reached
maximum medical improvement and that the medications prescribed for reactive airway disease
were not justified.
The Office properly accorded determinative weight to Dr. Twomey’s findings, as he was
the impartial medical examiner.11 Dr. Twomey’s July 17 and August 2, 2006 reports are
sufficiently well rationalized and based upon a proper factual background. This evidence
established that appellant’s accepted conditions have resolved and there is no longer a need for
medical treatment. Dr. Echols’ September 15, 2006 report, wherein he diagnosed ongoing
reactive airway disease, is insufficient to outweigh the impartial medical examiner’s report and
insufficient to create a new conflict. He was on one side of the conflict in medical opinion that
Dr. Twomey was called upon to resolve. Dr. Echols latest finding is essentially a reiteration of
his earlier opinion, and thus, it is insufficient to overcome the weight properly accorded the
impartial medical examiner’s opinion.12
The Board finds that Dr. Twomey’s opinion establishes that appellant no longer has
employment-related disability or residuals due to his March 20 and November 5, 2003
employment injuries. Accordingly, the Office properly terminated appellant’s wage-loss
compensation and medical benefits.
CONCLUSION
The Office met its burden of proof to terminate appellant’s wage-loss compensation and
medical benefits effective October 1, 2006.

11

Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).
12

Kathryn E. Demarsh, 56 ECAB 677, 684 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the July 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Lancaster, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Charles Westmoreland, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0677
Issued: December 31, 2020

Case Submitted on the Record

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

JURISDICTION
On February 6, 2020 appellant, through her representative, filed a timely appeal from a
December 9, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.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 OWCP received additional evidence following the December 9, 2019 decision. 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.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation, effective January 5, 2020.
FACTUAL HISTORY
On June 17, 2013 appellant, then a 51-year-old pharmacy technician, filed an occupational
disease claim (Form CA-2) alleging that she developed a swollen wrist and forearm pain due to
“constantly opening medication bottles” in a repetitive motion, eight hours per day, while in the
performance of duty. She noted that she first became aware of the condition on August 1, 2012,
and first attributed it to factors of her federal employment on January 4, 2013. Appellant did not
initially stop work.
On August 21, 2013 OWCP accepted the claim for right wrist sprain, radial styloid
tenosynovitis on the right. It subsequently expanded acceptance of the claim to include: accepted
bilateral, carpal tunnel syndrome, injury of radial nerve at upper arm level, right arm, initial
encounter; lateral epicondylitis, left elbow; lesion of ulnar nerve, left upper limb; other synovitis
and tenosynovitis, right forearm; other synovitis and tenosynovitis, right forearm; other
tenosynovitis of hand and wrist, right; trigger finger, right ring finger; unspecified sprain of right
elbow, initial encounter; unspecified sprain of right wrist, initial encounter; and wrist sprain, right.
OWCP paid appellant intermittent wage-loss compensation on the supplemental rolls as of
September 9, 2013 and on the periodic rolls as of November 17, 2013.4
In a December 28, 2017 report, Dr. Rory Allen, an osteopath specializing in family
medicine, noted that appellant had undergone right hand surgery on November 30, 2017 and was
not cleared for postoperative rehabilitation. He explained that she also was recovering from her
surgery to the left hand in July 2017. Dr. Allen opined that appellant’s accepted employmentrelated conditions had not resolved and she was medically unable to return to work on a full-time
or part-time basis with or without restrictions.
On May 21, 2018 OWCP referred appellant, a statement of accepted facts (SOAF), and a
list of questions to Dr. George Wharton, a Board-certified orthopedic spine surgeon, for a second
opinion evaluation to determine whether appellant had any continuing disability arising from the
accepted employment injuries.
In an April 26, 2018 report, Dr. Wharton noted appellant’s history of injury and medical
treatment. He noted her accepted conditions and her current physical examination findings and
4

On December 20, 2013 appellant underwent a right carpal tunnel release and a left tenosynovectomy of the
abductor pollicis longus and extensor pollicis brevis. On March 23, 2017 she underwent right carpal tunnel release,
right lateral epicondyle debridement, and tenolysis of the extensor carpi radialis longus and brevis tendon. On
July 6, 2017 appellant underwent additional surgery including a left carpal tunnel release, left neuroplasty of the ulnar
nerve at the elbow, left lateral epicondyle debridement and debridement and tendon repair, tenolysis of abducture
pollicis longus tendon and extensor pollicis brevis tendon and tendon sheath incision. On November 30, 2017 she
underwent flexor digitorum profundus, tenosynovectomy and superficialis tendolysis of the right ring finger, right
ring finger incision of the tendon sheath, and excision of deep mass from right ring finger/palm. On June 21, 2018
appellant underwent right intersection release, right wrist synovectomy and tenosynovectomy. On March 8, 2019 she
underwent right wrist tenolysis and synovectomy of extensor pollicis brevis, abductor pollicis longus, extensor carpi
radialis brevis, and longus with removal of abundant scar tissue.

2

thereafter related that she continued to have some residuals related to her accepted conditions.
Dr. Wharton opined that appellant could return to work for eight hours per day, in her pharmacy
technician position, with permanent restrictions including no lifting, pushing, and pulling over 20
pounds, occasional reaching activities, and no repetitive movements of wrists and elbows more
than two hours per day.
On January 24, 2019 OWCP determined that a conflict of medical opinion existed between
the treating physician, Dr. Allen, who indicated that appellant remained totally disabled from work
due to the accepted conditions, and the second opinion physician, Dr. Wharton, who advised that
appellant could return to work with restrictions.
On May 23, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and appellant’s complete case file for an impartial medical examination with Dr. James F.
Hood, a Board-certified orthopedic surgeon, to resolve the conflict of medical opinion between
Drs. Allen and Wharton regarding appellant’s continuing employment-related residuals and
disability.
In a July 31, 2019 report, Dr. Hood, the impartial medical examiner (IME), noted
appellant’s history of injury and medical treatment. He examined her and provided physical
findings. Dr. Hood found that appellant’s examination of the right hand revealed full flexion and
extension of the right elbow, tenderness on palpitation, a positive Finkelstein’s test and tenderness
over the carpometacarpal joint and radial styloid, positive Tinel’s, positive median compression,
and decreased sensation in both the median and ulnar nerve distribution to light touch. He found
that, regarding the left side, appellant had full range of motion of the wrist and elbow, minimal
tenderness, no thenar atrophy bilaterally, and normal thumb-to-finger pinch bilaterally. Dr. Hood
opined, “it does not appear that the work-related conditions have resolved. [Appellant] still has
positive physical findings, more on the right than the left, and continued positive nerve conduction
studies.” He noted that he suspected appellant’s underlying diabetes was a major cause of
continued findings of neuropathy and also noted findings of carpometacarpal arthritis at the base
of the thumbs. Dr. Hood advised that pharmacological management was appropriate, but
condemned the use of opioids and recommended that appellant be weaned from them. He noted
that appellant had decreased strength in opening bottles. Dr. Hood opined, “I doubt that opening
bottles would be a continued non-ending part of her job-requirements.” He further advised that
there were “many ways that one can open bottles, and these can be part of her retraining to return
to work.” Dr. Hood opined that appellant was capable of returning to full-duty work as a pharmacy
technician. He found that appellant had reached maximum improvement (MMI).
On September 25, 2019 OWCP issued a notice of proposed termination of appellant’s
wage-loss compensation finding the special weight of the medical evidence rested with the report
of Dr. Hood. It afforded her 30 days to respond in writing if she disagreed with the proposed
termination.
On October 24, 2019 appellant’s representative challenged the proposed termination.
OWCP subsequently received an October 23, 2019 report, wherein Dr. Allen argued that
the report of the IME was invalid because Dr. Hood did not appear to be aware of appellant’s job
requirements, which clearly included repetitive use of her upper extremities. He opined that she
could not return to work with or without restrictions and advised that she should continue her
postoperative rehabilitation with a transition to a potential work-hardening program.
3

By decision dated December 9, 2019, OWCP terminated appellant’s wage-loss
compensation, effective January 5, 2020, based on the special weight accorded to the report of
Dr. Hood as the IME.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.5 Alter it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.7
Section 8123(a) 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.8 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.9
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 5, 2020.
OWCP properly identified a conflict of medical opinion between Drs. Allen and Wharton
regarding appellant’s ability to return to work and referred her for an impartial medical
examination with Dr. Hood. Dr. Hood was provided with appellant’s complete case file, which
included her position description. In his July 31, 2019 report, he reviewed her history of injury,
medical records, and the SOAF. Dr. Hood performed diagnostic testing and reviewed the
diagnosed conditions. In answers to questions posed by OWCP, he found that appellant’s workrelated conditions had not resolved. Dr. Hood noted “positive physical findings, more on the right
than the left, and continued positive nerve conduction studies.” However, he opined that appellant
was capable of returning to full duty as a pharmacy technician. Dr. Hood noted that she had
decreased strength in opening bottles, and opined, “I doubt that opening bottles would be a
continued non-ending part of her job-requirements.” The Board finds that Dr. Hood’s opinion
regarding appellant’s job duties was based upon an incorrect factual history, as her position
description clearly identified opening bottles as a job duty, which she performed as part of the
5

See D.B., 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2081); S.F., 59 ECAB
642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

A.G., Docket No. 19-0220 (issued August 1, 2019); I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
7

G.H., Docket No. 18-0414 (issued November 14, 2018); Del K. Rykert, 40 ECAB 294, 295-96 (1988).

8

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309,
317 (1994).
9

D.W., supra note 5.

4

prepacking process for four to five hours a day. Furthermore, Dr. Hood’s opinion that there were
“many ways that one can open bottles, and these can be part of her retraining to return to work” is
conclusory and does not explain how appellant could be trained to do so. The Board has held that
a medical opinion is of limited probative value if it is conclusory in nature.10
The Board therefore finds that Dr. Hood’s opinion is of limited value on the relevant issue
in this case, and that his report is not entitled to the special weight accorded an impartial medical
examiner. OWCP therefore did not meet its burden of proof to terminate appellant’s wage-loss
compensation.11
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 5, 2020.

10

C.M., Docket No. 19-0360 (issued February 25, 2020).

11

C.R., Docket No. 19-1132 (issued October 1, 2020).

5

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6