United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF LABOR, MINE, SAFETY &
HEALTH ADMINISTRATION, Prosperity, PA,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2208
Issued: July 10, 2009

Case Submitted on the Record

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

JURISDICTION
On August 7, 2008 appellant filed a timely appeal from the merit decisions of the Office
of Workers’ Compensation Programs’ dated November 7, 2007, February 26 and June 16, 2008,
terminating his compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits effective November 7, 2007; and (2) whether

1

The Board notes that, by decision dated November 13, 2007, the Office denied appellant’s claim for
compensation benefits for the period September 10 through 14, 2007. Although the Board has jurisdiction over the
November 13, 2007 decision, appellant, through his representative, has appealed only the decision terminating his
compensation and medical benefits effective November 7, 2007. Therefore, the Board will not address the issue that
was before the Office in its November 13, 2007 decision.

the medical evidence established that appellant had any disability or residuals after
November 30, 2007 causally related to his employment injury.2
FACTUAL HISTORY
On May 1, 2007 appellant, then a 60-year-old safety and health inspector, filed a
traumatic injury claim alleging that he sustained a neck injury while riding on a track-mounted
jeep on April 30, 2007. His claim was accepted for a neck sprain and he was paid compensation
benefits from September 17 through November 6, 2007.
Appellant was treated by Dr. Wladyslaw Bobak, a Board-certified internist. On
August 1, 2007 Dr. Bobak stated that he had sustained a severe work-related cervical spine
injury on April 30, 2007. He indicated that, as a result of the injury, appellant had severely
limited range of motion (ROM) and opined that he was unable to work. Dr. Bobak diagnosed
cervical sprain with radiculopathy.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Stephen Bailey, a Board-certified orthopedic surgeon, for a second opinion
examination. It asked Dr. Bailey to render an opinion as to whether he continued to experience
residuals due to his accepted injury and, if so, whether he was disabled as a result of those
residuals.
The record contains an August 7, 2007 report of a computerized tomography scan of the
head. The record also contains a report of an August 7, 2007 electromyogram (EMG) and nerve
conduction study (NCS).
In a September 14, 2007 report, Dr. Bailey described the history of injury and treatment.
He stated that an August 9, 2007 EMG and NCS reflected peripheral polyneuropathy, but no
specific electrophysiological evidence for focal compressive neuropathy or cervical
radiculopathy in the areas evaluated. Dr. Bailey also indicated that a May 10, 2007 magnetic
resonance imaging (MRI) scan of the cervical spine showed no evidence of a herniated disc,
spinal stenosis, spinal cord or thecal sac impingement and no evidence of any trauma to the
cervical spine. The study did show multilevel mild degenerative changes, “but nothing present
that could in [his] opinion explain [appellant’s] symptoms,” which included headache, pain and
numbness in both arms and weakness in his hands. Dr. Bailey’s neurological examination of
both upper extremities revealed reflexes of 1 to 2+ bilaterally. Sensory examination to pin and
light touch was normal in both upper extremities. Manual motor testing is essentially intact.
Palpation of the neck revealed no spasm or tenderness. ROM testing demonstrated restricted
ROM, with 10 degrees of flexion, 25 degrees of extension and less than 20 degrees of tilting and
rotation. Dr. Bailey was unable to explain appellant’s restricted ROM, given the fact that he
observed no muscle spasm and there was no MRI scan evidence of any significant cervical spine
pathology affecting both upper extremities. He stated that he found no objective evidence of

2

On appeal, appellant’s representative states that he has had prior accepted work injuries that bear on the injury in
this case. He requests that the case be remanded for consolidation and further development of the medical evidence
on the issue of causal relationship.

2

impairment or of a cervical sprain. Dr. Bailey opined that appellant was capable of working full
duty as a mine inspector without restrictions.
In a September 20, 2007 report, Dr. Shobha Asthana, a Board-certified neurologist,
diagnosed severe cervical sprain and cervical spasm following an April 30, 2007 work injury.
He stated that it was unclear why appellant’s symptoms persisted so long after the injury.
By letter dated October 2, 2007, the Office issued a notice of proposed termination of
appellant’s compensation and medical benefits. It found that the weight of the medical evidence
was represented by Dr. Bailey’s September 14, 2007 report, which established that appellant’s
accepted condition had resolved and that he was able to return to his date-of-injury job without
restrictions. The Office provided 30 days during which appellant could respond to the notice.
The record contains October 2, 2007 reports of an x-ray and an MRI scan of the cervical
spine. The record also contains physical therapy notes from July 11 to October 31, 2007.
In an October 24, 2007 report, Dr. Bobak stated that he had examined appellant on a
biweekly basis since May 7, 2007. Examination revealed a severe cervical sprain, which
produced a stiff neck; limited ROM; severe muscle spasms; constant headaches; unrelenting pain
radiating to both shoulders; and numbness in the arms and fingers. Dr. Bobak opined that
appellant was totally disabled from work.
By decision dated November 7, 2007, the Office found that the weight of the medical
evidence, encompassed in Dr. Bailey’s report, established that appellant had no residuals from
the accepted condition. Accordingly, it terminated his medical and wage-loss compensation
benefits effective November 7, 2007. The Office stated that Dr. Bailey’s opinion, in light of his
expertise as an orthopedist, was entitled to greater weight than, the opinion of Dr. Bobak, who
was an internal medicine specialist. It also noted that Dr. Bobak had not addressed appellant’s
preexisting cervical condition.
On December 12, 2007 appellant, through his representative, requested reconsideration.
In a January 2, 2008 statement, he indicated that he was totally disabled due to his work-related
injury.
Appellant submitted physical therapy notes from Colony A. Hopkins, DPT, from
October 24 to December 27, 2007. On December 27, 2007 Mr. Hopkins stated that appellant had
full passive ROM, but required restrictions due to pain and muscle tightness in the upper
trapezius.
In a report dated December 10, 2007, Dr. Bobak stated that he had been treating appellant
for a severe cervical sprain with muscle spasms on a biweekly basis since May 7, 2007,
following an April 30, 2007 work-related neck injury. He indicated that appellant was engaged
in ongoing physical therapy and that his therapist noted restrictions on active ROM secondary to
pain and muscle tightness. Dr. Bobak disagreed with Dr. Bailey’s conclusion that the accepted
cervical sprain had resolved. He noted the results of an October 2, 2007 MRI scan, which
revealed abnormal cervical lordosis; multiple-level disc degeneration, which was most prominent
at C5, 6 and 7; significant narrowing of the disc spaces; small posterior osteophytes noted
indenting the thecal sac; and an irregularly contoured left paracentral complex which showed
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encroachment into the neuroforamina. October 2, 2007 x-rays of the cervical spine revealed disc
space narrowing with marginal spurring at C5 to 7 and degenerative disc disease of the cervical
spine. An August 9, 2007 EMG revealed peripheral polyneuropathy affecting both upper
extremities.
Dr. Bobak addressed the deficiencies in his previous reports identified by the Office in its
November 7, 2007 decision. He stated that appellant was not aware that he had a preexisting
cervical condition and that, although, he experienced several back injuries, which required
treatment over the years and has jammed his head into the mine roof on occasions too numerous
to count, he never required medical treatment for any cervical spine disability. Dr. Bobak
indicated that he continued to experience severe muscle spasms of the neck on palpation and no
movement capabilities. He also noted that appellant was experiencing some numbness in his
arms and fingers. Dr. Bobak stated that his review of diagnostics, his examinations, reports from
physical therapy and the neurologist confirmed that appellant’s accepted condition was ongoing
and that his physical condition, constant headaches and unrelenting pain prevent him from
performing any work. He opined that appellant’s history of repeated trauma to his neck
accounted for his degenerative disc disease and that this preexisting condition was aggravated by
the April 30, 2007 injury. Dr. Bobak suspected that he had cervical radiculopathy, which would
help to explain his slow improvement, severe pain and continuing cervical muscle spasms.
Appellant submitted a January 14, 2008 report from Dr. Mark E. Baratz, a Boardcertified orthopedic surgeon, who diagnosed degenerative joint disease of the cervical spine, with
evidence of cervical radiculopathy. On examination, he had difficulty rotating his head or
bending forward or backward. With side bending, appellant experienced numbness radiating to
his thumbs and fingers. He noted that an August 9, 2007 EMG suggested peripheral
polyneuropathy and an MRI scan showed evidence of arthritis, with changes in cervical lordosis.
The record contains a January 12, 2008 report from Dr. Mark R. Foster, a Board-certified
orthopedic surgeon, who stated that appellant sustained a work-related whiplash injury on
April 30, 2007, while riding through a mine in a rail cart. Startled by a noise, appellant
apparently twisted his head around to see what was going on, when the driver hit his brakes,
causing the neck injury. Dr. Foster’s examination of the cervical spine revealed what he
described as almost no ROM -- 5 to 10 degrees of lateral rotation; 5 degree lateral bend;
extension to about 10 degrees; and flexion to about 15 degrees. He noted that appellant had a
negative Spurlings. Dr. Foster diagnosed cervical sprain with underlying severe cervical
spondylosis and a torn rotator cuff with abduction on the left side of approximately 60 degrees
preexisting the accepted injury. His examination revealed numbness from polyneuropathy,
which he stated was not injury related. Dr. Foster opined that appellant was disabled due to
spasms, severe restrictions in motion and axial pain without radiculopathy. He also opined that
appellant’s underlying chronic degenerative joint disease was exacerbated by the accepted
cervical sprain.
The employing establishment forwarded a copy of Dr. Foster’s January 12, 2008 report to
Dr. Neal L. Presant, a Board-certified family practitioner, for an opinion as to whether appellant
was capable of performing the duties of a mine inspector. Noting that appellant had been “off
work” since suffering a neck injury in April 2007, he stated that Dr. Presant’s examination was
intended to resolve a conflict between his treating physician and the Office’s second opinion

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physician regarding his ability to work as an inspector. The medical history reflected that he
suffered from chronic severe pain, causing major restrictions on his ability to perform activities
of daily living, let alone perform heavy physical labor. On examination, Dr. Presant found an
extremely limited ROM in the head and neck, consistent with appellant’s medical history.
Noting that the inspector position required continuous physical activity, including walking,
stooping, crawling, climbing ladders and lifting weights up to 50 pounds, he opined that
appellant was permanently “not fit for duty as a Mine Safety and Health Inspector” and
recommended an Office of Personal Management disability retirement if his claim was rejected
by the Office.
By decision dated February 26, 2008, the Office denied modification of its previous
decision, finding that the weight of the medical evidence was encompassed in Dr. Bailey’s
second opinion report. The claims examiner stated that appellant’s treating physicians provided
inaccurate facts as to how the accepted injury occurred; failed to address his preexisting cervical
condition; and did not explain why his cervical sprain and spasms continued for such a long
period of time, when normal sprains are resolved within eight weeks. The Office stated that
appellant had “severe preexisting conditions,” as evidenced by medical reports contained in a
previous claim (File No. xxxxxx874).3
On April 22, 2008 appellant, through his representative, requested reconsideration. He
stated that he was unaware that he had a preexisting cervical spine condition at the time he filed
this claim, because he was previously treated for a lower back condition. Appellant alleged that
he was unable to work due to his April 30, 2007 injury, which exacerbated his neck condition.
In an April 21, 2008 report, Dr. Bobak stated that he had reviewed several accident
reports, which had previously been unavailable to him, including a report of a September 25,
2003 injury of the cervical and lumbar spine. Appellant informed Dr. Bobak that he was not
aware that he was being treated for injury to his cervical spine as a result of that accident.
Diagnostic reports of that injury showed that he suffered from some loss of disc height at C5-6
and C6-7, as well as some degenerative spondylosis; increased activity involving the left side of
the mandible, which represented changes related to periodontal disease and/or trauma; and mild
peripheral neuropathy. On March 5, 2004 Dr. Platto reportedly released him to his regular
inspection duties. Appellant returned to his work and continued to work daily until his twisting
whiplash injury on April 30, 2007. To his knowledge, he never experienced any effects from the
diagnosis of peripheral neuropathy.
Dr. Bobak compared diagnostic studies associated with appellant’s September 25, 2003
cervical spine injury to the May 10 and October 2, 2007 studies. He found no obvious evidence
of any normal progression of his preexisting condition that would explain his current disabling
symptoms. Dr. Bobak reviewed appellant’s treatment history, including Dr. Foster’s January 12,
2008 report, which reflected findings of muscle spasms, severe restricted ROM with axial pain
3

The claims examiner identified and discussed the following reports contained in (File No. xxxxxx874): reports
dated October 27, 30 and December 23, 2003 from Dr. Michael Platto, who reported that appellant had underlying
degenerative joint disease and a right rotator cuff injury; an October 30, 2003 report of a bone imaging examination,
reflecting a preexisting cervical spine condition; and a report from Dr. George C. Schmieler, who indicated that
appellant had pain behavior and symptom magnification.

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and a cervical strain with underlying severe cervical spondylosis. He opined that appellant’s
preexisting cervical condition was aggravated by his April 30, 2007 twisting whiplash injury
accident. Dr. Bobak stated that appellant was suffering from extremely limited ROM to his head
and neck with severe neck pain, which radiated to his shoulders and experienced continuous,
severe muscle spasms, numbness in his right arm and fingers and a constant headache, with no
ability to concentrate. He further opined that appellant was unable to perform any type of work.
Dr. Bobak opined that his whiplash injury caused the disc at C5-6 and C6-7 to bulge, which in
turn is responsible for constant muscle spasms. He recommended that the previously diagnosed
condition of neck sprain be amended to include the conditions of cervical spondylosis,
degenerative disc disease and bulging disc in the cervical area.
By decision dated June 16, 2008, the Office denied modification of its previous decisions,
on the grounds that the medical evidence was insufficient to demonstrate that appellant was
disabled or had residuals from his work-related injury and that the evidence did not support the
expansion of the claim to include another cervical condition.4
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has ceased
or lessened in order to justify termination or modification of compensation benefits.5 It may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.6 The Office’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
Furthermore, the right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability compensation.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

4

Although Dr. Bobak recommended that appellant’s previously diagnosed condition of neck sprain be amended
to include the conditions of cervical spondylosis, degenerative disc disease and bulging disc in the cervical area and
the Office stated that the evidence did not support expansion of the claim, the record does not contain a formal
request by appellant or his representative for an expansion of the claim. The Board notes that, on appeal, counsel
requested a new second opinion evaluation on the issue of causal relationship between appellant’s diagnosed
conditions and his work injury. However, the Board cannot consider a request for expansion of the claim for the
first time on appeal.
Appellant submitted additional evidence after the Office’s June 16, 2008 decision; however, the Board cannot
consider such evidence for the first time on appeal. The Board’s review of a case shall be limited to the evidence in
the case record which was before the Office at the time of its final decision. 20 C.F.R. § 10.501.2(c) (2007).
5

See Beverly Grimes, 54 ECAB 543 (2003).

6

Id.

7

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

8

See Beverly Grimes, supra note 5. See also Franklin D. Haislah, 52 ECAB 457 (2001).

9

See Beverly Grimes, supra note 5.

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Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary of Labor shall appoint a third physician who
shall make an examination.10 When there are opposing reports of virtually equal weight and
rationale, the case must be referred to an impartial medical specialist, pursuant to section 8123(a)
of the Act, to resolve the conflict in the medical evidence.11
ANALYSIS -- ISSUE 1
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation and medical benefit as there remains an unresolved conflict in medical opinion
evidence. Therefore, the Office’s decisions terminating those benefits must be reversed.
Appellant’s treating physician opined that he was disabled from any type of work due to
residuals of his accepted cervical sprain. On August 1, 2007 Dr. Bobak diagnosed cervical
sprain with radiculopathy and opined that he had severely limited ROM and was unable to work
as a result of the accepted April 30, 2007 injury. On October 24, 2007 he again opined that
appellant was totally disabled from work due to the accepted injury, noting that he had examined
him on a biweekly basis since May 7, 2007. Examination revealed a severe cervical sprain,
which produced a stiff neck; limited ROM; severe muscle spasms; constant headaches;
unrelenting pain radiating to both shoulders; and numbness in the arms and fingers.
On the other hand, the Office’s second opinion physician found no objective evidence of
impairment or of a cervical sprain. On September 14, 2007 Dr. Bailey opined that appellant was
capable of working full duty as a mine inspector without restrictions. He noted that an August 9,
2007 EMG/NCS reflected peripheral polyneuropathy, but no specific electrophysiological
evidence for focal compressive neuropathy or cervical radiculopathy in the areas evaluated.
Dr. Bailey also indicated that a May 10, 2007 MRI scan showed no evidence of a herniated disc,
spinal stenosis, spinal cord or thecal sac impingement and no evidence of any trauma to the
cervical spine. The study did show multilevel mild degenerative changes, “but nothing present
that could in [his] opinion explain [appellant’s] symptoms,” which included headache, pain and
numbness in both arms and weakness in his hands. Palpation of the neck revealed no spasm or
tenderness and ROM testing demonstrated restricted ROM, with 10 degrees of flexion,
25 degrees of extension and less than 20 degrees of tilting and rotation. Dr. Bailey was unable to
explain appellant’s restricted ROM, given the fact that he observed no muscle spasm and there
was no MRI scan evidence of any significant cervical spine pathology affecting both upper
extremities.
The Board finds that at the time of the termination a conflict existed in the medical
opinion evidence between appellant’s treating physicians, who opined that appellant was
disabled as a result of residuals from his accepted injury, and the Office’s second opinion
examiner, who opined that his accepted condition had resolved. The Office stated that
Dr. Bailey’s opinion, in light of his expertise as an orthopedist, was entitled to greater weight
10

5 U.S.C. § 8123(a).

11

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

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than the opinion of Dr. Bobak, who was an internal medicine specialist. Although the Board has
found that the opinions of physicians who have training and knowledge in a specialized medical
field have greater probative value concerning medical questions peculiar to that field than do the
opinions of other physicians,12 no individual factor standing alone necessarily determines the
weight of the medical evidence.13
Dr. Bailey’s expertise as an orthopedist does not automatically trump the opinion of
Dr. Bobak, a Board-certified internist, who treated appellant on a weekly basis following his
accepted injury and whose physical findings were supported by those of Dr. Asthana, Dr. Foster,
and Dr. Baratz. The Office stated that Dr. Bobak did not address appellant’s preexisting cervical
condition. However, in his April 21, 2008 report, Dr. Bobak opined that appellant’s preexisting
cervical condition was aggravated by his April 30, 2007 twisting whiplash injury accident. The
Board notes that Dr. Bailey did not have the benefit of reviewing the reports of the October 2,
2007 x-ray or MRI scan of the cervical spine, thereby diminishing the probative value of his
September 14, 2007 report. On the other hand Dr. Bobak’s more recent report of December 10,
2007 included a discussion of the October 2, 2007 reports, which revealed abnormal results. The
Office also stated that Dr. Bobak failed to explain why appellant’s sprain and spasms were still
present. The record reflects, however, that on December 17, 2007, Dr. Bobak opined that
appellant had cervical radiculopathy, which he stated would explain his slow improvement. The
Board finds that the opposing reports of Dr. Bailey and Dr. Bobak are of virtually equal weight
and rationale. Therefore, the case must be referred to an impartial medical specialist, pursuant to
section 8123(a) of the Act, to resolve the conflict in the medical evidence as to whether appellant
has any residuals from his accepted condition and, if so, whether he was disabled as a result of
those residuals as of November 7, 2007.14
In its June 16, 2008 decision, the Office found that the medical evidence was insufficient
to demonstrate that appellant was disabled or had residuals from his work-related injury. The
Board finds that the Office improperly placed the burden on appellant. Once the Office accepted
appellant’s claim, it had the burden of proving that his disability has ceased or lessened in order
to justify termination or modification of his compensation benefits15 and to establish that he no
longer had residuals of his employment-related condition in order to terminate authorization for
medical treatment.16

12

Mary S. Brock, 40 ECAB 461 (1989).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.4b (October 2005) see Michael S. Mina, 57 ECAB 379 (2006) (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).
14

William C. Bush, supra note 11.

15

See Beverly Grimes, supra note 5.

16

Id.

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CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate
compensation for wage-loss and medical benefits effective November 7, 2007, as there remains
an unresolved conflict in the medical evidence.17
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 16 and February 26, 2008 and November 7, 2007 are
reversed.
Issued: July 10, 2009
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

17

In light of the Board’s ruling on the first issue, the second issue is moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fayetteville, NC, Employer
__________________________________________

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Appearances:
Martin Kaplan, for the appellant
Office of Solicitor, for the Director

Docket No. 12-687
Issued: August 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 6, 2012 appellant, by her representative, filed a timely appeal from an
October 19, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim of compensation. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
from May 13 through June 5, 2010 due to her accepted bilateral carpal tunnel syndrome.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 3, 2006 appellant, then a 47-year-old patient services assistant, filed a claim
for occupational disease alleging a bilateral wrist condition as a result of her federal
employment. Her claim was accepted on September 7, 2007 for bilateral carpal tunnel syndrome
and the claim was expanded on February 6, 2009 to include keloid scar.
In a report dated May 19, 2009, Dr. Richard J. Harrison, an orthopedic surgeon,
recommended that appellant have a frictionless window installed in her workplace, as well as a
cordless headset for answering telephone calls. He also recommended that she be allowed to
take a break at her desk to perform exercises for 10 minutes every 2 hours.
Documentation dated April 20 and May 4, 2009 from the employing establishment
indicated that a work order had been placed to repair a cordless telephone headset ear piece in
order to comply with appellant’s medical profile.
In a September 21, 2009 report, Dr. Josef Eichinger, an orthopedic surgeon, stated that
appellant was released without limitations. On January 4, 2010 the employing establishment
verified that appellant returned to work with no restrictions as of September 22, 2009.
On April 26, 2010 appellant requested that her claim be accepted for major depression
and anxiety. OWCP received an April 26, 2010 report from Mary Ellen Levine, a licensed
clinical social worker, who stated that appellant was seen for adjustment disorder with anxiety
and depression that was disabling. Ms. Levine stated that the conditions were causally related to
appellant’s carpal tunnel syndrome, as she lost hand function with constant pain that was
emotionally debilitating.
On May 17 and 27, 2010 appellant filed claims for compensation for the period May 13
through 22, 2010 and from May 23 through June 5, 2010.
In a note dated May 6, 2010, Dr. Steven Dudley, a psychiatrist, stated that appellant
needed to be out of work from May 6 to July 5, 2010 for treatment of her depression and anxiety,
secondary to her carpal tunnel syndrome. The note indicated that, although appellant had been in
treatment for her physical condition, the treatment has not been effective because her hands are
continually in use and had not had time to heal and she experiences severe pain on a daily basis.
The note further stated that her pain had become unbearable and she could not perform her job
duties.
Appellant also submitted a May 13, 2010 certificate from Dr. Eichinger which stated that
appellant could not return to work for 60 days due to chronic right hand carpal tunnel syndrome.
OWCP received occupational therapy records dated May 25 and 27, 2010 which
indicated that appellant was receiving treatment for her carpal tunnel syndrome.
On May 27, 2010 OWCP requested that appellant submit further evidence in support of
her claim, including a comprehensive medical report which described with medical rationale the
cause of her disability.

2

By decisions dated June 29 and July 15, 2010, OWCP denied compensation for total
disability for the period May 13 through 22, 2010 and the period May 23 through June 5, 2010.
On July 19, 2010 OWCP received a report from Dr. Dudley dated July 12, 2010 which
related that appellant had major depressive disorder and adjustment disorder with depression and
anxiety, due to a change in her physical health. Dr. Dudley explained that appellant had carpal
tunnel syndrome and chronic pain when she performed work duties. He concluded that
appellant’s pain and change in the level of functioning were the cause of her depression.
In its September 21, 2010 decision, OWCP denied appellant’s request to expand
acceptance of the claim for conditions of major depression, recurrent depression and anxiety.
On May 6 and 31, 2011 appellant, through her representative, requested reconsideration
of the June 29 and July 15, 2010 decisions.
In a May 5, 2011 letter, appellant’s attorney argued that appellant had suffered a
recurrence from May 13 through June 5, 2010 because the employing establishment did not
comply with her medical restrictions. He claimed that the employing establishment, while
providing a cordless headset and a frictionless privacy window as suggested by appellant’s
attending physician, overwhelmed appellant with increased workload such that she was not
allowed to take the breaks as recommended by Dr. Harrison. Counsel also claimed that the
employing establishment had instead relied upon the opinion of Dr. Eichinger who indicated that
appellant could return to work with no limitations. He also indicated that this claim was
unrelated to appellant’s emotional condition.
In a report dated May 17, 2011, Dr. Eichinger related that appellant should have the same
limitations outlined by Dr. Harrison in his memorandum dated May 19, 2009. He concluded that
there had been no change to her limitations.
The employing establishment controverted appellant’s argument in a letter dated
September 15, 2011, stating that they have purchased the necessary equipment for appellant, and
that appellant was allowed to take breaks at her desk as recommended by her physician. The
letter further stated that appellant never reported to her supervisor that she was unable to adhere
to the medical restrictions.
By decision dated October 19, 2011, OWCP denied appellant’s claim of compensation on
the grounds that the record did not reflect that she was totally disabled or that the employing
establishment failed to provide her with work accommodations recommended by her physician.
It stated that the “medical evidence of record does not contain contemporaneous medical
evidence that explains how your accepted work-related condition worsen (sic) to the point you
could not work during the period May 13 through June 5, 2010. The contemporaneous medical
evidence shows you were held off work during this time due to an emotional condition that has
not been accepted as work related.”

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the evidence.2 For each period of disability
claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.3 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.4 To meet his burden, a
claimant must submit rationalized medical opinion evidence, based on a complete factual and
medical background, supporting a causal relationship between the alleged disabling condition
and the accepted injury.5
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence
establishes that he can perform the limited-duty position, the employee has the burden of proof to
establish a recurrence of total disability and that he cannot perform such limited-duty work. As
part of this burden, the employee must show a change in the nature or extent of the injury-related
condition or a change in nature and extent of the light-duty job requirements.6
OWCP’s definition of a recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new exposure.
The term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn, except for when such withdrawal occurs for reasons of
misconduct, nonperformance of the job duties or a reduction-in-force.7 The Board has held that
when a claimant stops work for reasons unrelated to the accepted employment injury, there is no
disability within the meaning of FECA.8
ANALYSIS
OWCP denied appellant’s claim for compensation because the contemporaneous medical
evidence showed that she was held off work during this time due to an emotional condition that
was not accepted as work related. It found she had not established that she was required to
2

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
3

See David H. Goss, 32 ECAB 24 (1980).

4

See Edward H. Horton, 41 ECAB 301 (1989).

5

A.D., 58 ECAB 149 (2006).

6

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

7

See 20 C.F.R. § 10.5(x).

8

John W. Normand, 39 ECAB 1378 (1988).

4

perform work outside her medical restrictions. The Board notes initially that appellant has not
submitted evidence to substantiate her allegation that she was in fact required to work outside of
her medical restrictions.
OWCP received various medical reports which addressed appellant’s restrictions from all
work during the relevant time period due to her accepted carpal tunnel condition, not due to
anxiety or depression. Appellant submitted the reports of Dr. Dudley dated May 6 and July 12,
2010 which explained that she needed to be out of work from May 6 to July 5, 2010 because her
carpal tunnel condition had not improved. The severe pain she experienced daily prevented her
from performing her job duties. Appellant also submitted evidence from Dr. Eichinger. In a
May 13, 2010 report, Dr. Eichinger stated that she could not return to work for 60 days due to
chronic right hand carpal tunnel syndrome. Appellant had complaints regarding her carpal
tunnel syndrome and continued to receive occupational therapy. As noted by Dr Eichinger,
Dr. Harrison had placed appellant on restrictions as of May 19, 2009, which continued through
the relevant time period.
OWCP found that the contemporaneous medical evidence showed appellant was held off
work during this time due to an emotional condition that has not been accepted as work related.
It failed to address the medical report which addressed appellant’s carpal tunnel condition,
accepted as work related, that rendered her incapable of performing her job duties. The Board
will remand the case to OWCP for further consideration of the medical evidence. After such
further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant’s claim for compensation for the period of May 13
through June 5, 2010 is not in posture for decision.

5

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for proceedings consistent
with this decision of the Board.
Issued: August 16, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, Fort Gordon, GA,
Employer
__________________________________________

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

Docket No. 18-0201
Issued: June 20, 2018

Case Submitted on the Record

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

JURISDICTION
On November 6, 2017 appellant filed a timely appeal from an August 15, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
lapsed since the last merit decision, dated April 1, 2015, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On June 5, 2003 appellant, then a 52-year-old cash clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS) as a result
of her repetitive employment duties. OWCP accepted the claim for bilateral CTS. Appellant
stopped work on April 13, 2005 and received wage-loss compensation. She underwent left carpal
tunnel release on July 11, 2005 and right traverse carpal ligament on November 1, 2005. Appellant
retired on March 9, 2006.
On March 1, 2006 appellant filed a claim for a schedule award (Form CA-7).
By decision dated April 10, 2006, OWCP granted appellant a schedule award for five
percent permanent impairment of the right upper extremity and five percent permanent impairment
of the left upper extremity. The date of maximum medical improvement (MMI) was noted as
February 23, 2006.
On August 16, 2011 appellant filed a claim for an increased schedule award (Form CA-7).
By decision dated May 7, 2012, OWCP granted appellant an additional schedule award for
four percent permanent impairment of each upper extremity. The date of MMI was again noted
as February 23, 2006.
On October 7, 2014 appellant filed a claim for an increased schedule award (Form CA-7).
On February 12, 2015 appellant was referred to Dr. Alexander Doman, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding the nature and extent of permanent
impairment. In his February 12, 2015 report, Dr. Doman reported that MMI had been reached.
He opined that appellant sustained five percent permanent impairment of the right upper extremity
with respect to the median nerve and one percent permanent impairment of the left upper extremity.
Dr. Doman reported that appellant was not entitled to an additional award beyond the nine percent
previously received for permanent impairment of each upper extremity.
In reports dated March 23 and 26, 2015, Dr. James Dyer, a Board-certified orthopedic
surgeon serving as an OWCP district medical adviser (DMA), reviewed Dr. Doman’s report and
concurred with his impairment rating for five percent permanent impairment of the right upper
extremity and one percent permanent impairment of the left upper extremity. He further stipulated
that appellant was not entitled to more than the nine percent permanent impairment previously
awarded for each upper extremity.
By decision dated April 1, 2015, OWCP found that appellant failed to establish permanent
impairment of the right and left upper extremity greater than the nine percent previously awarded
for each extremity. It found that the current medical evidence established that she was entitled to
five percent permanent impairment of the right upper extremity and one percent permanent
impairment of the left upper extremity. As she had previously received nine percent for each upper
extremity, appellant was not entitled to an increased schedule award.

2

On May 26, 2016 OWCP received appellant’s request for reconsideration of the April 1,
2015 OWCP decision.
In an April 15, 2016 medical report, Dr. Robert Dinsmore, Board-certified in internal
medicine, reported that appellant had a long standing history of CTS and was last evaluated in
May 2014. He noted that she underwent bilateral carpal tunnel release in 2006 which helped for
three to four years, but since then her symptoms worsened. Dr. Dinsmore related that appellant
was now having the same symptoms that she had experienced prior to her surgeries. He performed
a repeat electromyography (EMG) study which revealed normal findings for the sensory portion
of the nerve conduction velocity (NCV), although appellant was unable to tolerate the EMG.
Dr. Dinsmore noted that surgery may or may not alleviate her symptoms and reported that she had
likely reached MMI from a surgical standpoint.
By decision dated June 6, 2016, OWCP denied appellant’s reconsideration request as it
was untimely filed and failed to demonstrate clear evidence of error.3
In a letter received on July 25, 2017, appellant requested reconsideration of the June 6,
2016 decision for a schedule award. In support of her request, she submitted a June 3, 2016
medical report from Dr. Dinsmore documenting treatment for her bilateral CTS. Dr. Dinsmore
noted that she had likely achieved MMI from a surgical standpoint and that her condition had not
changed from the year before.
By decision dated August 15, 2017, OWCP denied appellant’s reconsideration request as
it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA4 does not entitle a claimant to a review of an OWCP decision as
a matter of right.5 This section vests OWCP with discretionary authority to determine whether it
will review an award for or against compensation.6 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is timely.
In order to be timely, a request for reconsideration must be received by OWCP within one year of
the date of OWCP’s merit decision for which review is sought. Timeliness is determined by the
document receipt date of the reconsideration request (the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS)).7 The Board has found that the imposition of this

3

On July 27, 2016 appellant filed another claim for a schedule award (Form CA-7).

4

5 U.S.C. § 8128(a).

5

See M.P., Docket No. 17-0367 (issued March 12, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

6

Id.; see also Jesus D. Sanchez, 41 ECAB 964 (1990).

7
20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(February 2016); G.F., Docket No. 15-1053 (issued September 11, 2015).

3

one-year time limitation does not constitute an abuse of the discretionary authority granted OWCP
under 5 U.S.C. § 8128(a).8
In those cases where requests for reconsideration are untimely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether there
is clear evidence of error pursuant to the untimely request.9 OWCP’s procedures provide that
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in OWCP’s regulations, if the claimant’s request for reconsideration
demonstrates “clear evidence of error” on the part of OWCP.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.13 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.14 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.15 To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.16 The Board must make an independent
determination of whether a claimant has demonstrated clear evidence of error on the part of OWCP
such that OWCP abused its discretion in denying merit review in the face of such evidence.17
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a claimant
is asserting that the original award was erroneous based on his or her medical condition at that
time, this is a request for reconsideration. A claim for an additional schedule award may be based
on new exposure to employment factors or on the progression of an employment-related condition,
8

Supra note 5.

9

See supra note 7 at Chapter 2.1602.5 (February 2016).

10

Id.

11

Supra note 5.

12

See M.P., supra note 5; Leona N. Travis, 43 ECAB 227, 241 (1991).

13

Jesus D. Sanchez, supra note 6.

14

See M.P., supra note 5.

15

Id.; Nelson T. Thompson, 43 ECAB 919 (1992).

16

See M.B., Docket No. 17-1505 (issued January 9, 2018); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

17

See H.B., Docket No. 17-0414 (issued march 7, 2018); Nancy Marcano, 50 ECAB 110 (1998).

4

without new exposure, resulting in greater permanent impairment.18 As the Board explained in
Linda T. Brown,19 a claimant may seek an additional schedule award if the evidence establishes
that she sustained an impairment causally related to the employment injury. Even if the term
reconsideration is used, when a claimant is not attempting to show error in the prior schedule award
decision and submits medical evidence regarding a permanent impairment at a date subsequent to
the prior schedule award decision, it should be considered a claim for an increased schedule award.
A request for an increased schedule award is not subject to time limitations. OWCP should issue
a merit decision on the schedule award claim, rather than adjudicate an application for
reconsideration.
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was not timely filed within the one-year time limitation period set forth in 20
C.F.R. § 10.607.
When the underlying compensation issue is a schedule award, an initial question is whether
the claimant is requesting reconsideration or claiming an increased schedule award. In this case,
contrary to Linda T. Brown,20 appellant did not allege a worsening of her permanent impairment
due to additional employment exposures, but instead attempted to show error in the prior schedule
award decision. As she submitted evidence disagreeing with her prior schedule award decision,
the Board finds that OWCP properly considered her submission as an application for
reconsideration of the April 1, 2015 decision rather than a request for an additional schedule
award.21
In its August 15, 2017 decision, OWCP determined that appellant failed to file a timely
application for review. An application for reconsideration must be received within one year of the
date of OWCP’s merit decision.22 OWCP issued its most recent merit decision, denying
appellant’s schedule award claim, on April 1, 2015. The one-year time limitation for
reconsideration began to run on the date of the original decision, and the application for
reconsideration must be received by OWCP within one year of the date of OWCP’s decision for
which review is sought.23 Therefore, appellant had one year from April 1, 2015 to submit a timely
request for reconsideration. Appellant’s request for reconsideration was received on July 25, 2017
18

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); C.M., Docket No. 17-0310
(issued February 15, 2017); see also B.K., 59 ECAB 228 (2007) (where it was evident that the claimant was seeking
a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the
schedule award claim rather than adjudicate an application for reconsideration); see also J.F., Docket No. 13-0112
(issued November 6, 2013); R.B., Docket No. 16-1863 (issued April 3, 2017).
19

Id.

20

See Linda T. Brown, supra note 18.

21

See D.A., Docket No. 16-1715 (issued May 15, 2017).

22

20 C.F.R. § 10.607.

23

Supra note 18.

5

more than one year after the date of the last merit decision of record on April 1, 2015. As
appellant’s request for reconsideration was untimely and not received within one year of the
April 1, 2015 merit decision, she must demonstrate clear evidence of error by OWCP in denying
her claim.24
The only medical evidence submitted was Dr. Dinsmore’s June 3, 2016 report which noted
bilateral CTS findings and that she had likely reached MMI from a surgical standpoint and that
her condition had not changed from the year before. This report was substantially similar to
Dr. Dinsmore’s April 15, 2016 report, which was reviewed by OWCP in its June 6, 2016 decision.
Appellant did not explain how this evidence was positive, precise, and explicit in manifesting on
its face that OWCP committed an error in denying her schedule award claim.25 It is not apparent
how submission of this evidence is sufficient to raise a substantial question as to the correctness
of OWCP’s decision.26 The Board notes that clear evidence of error is intended to represent a
difficult standard. Evidence, such as a detailed well-rationalized medical report, which if
submitted before the merit denial might require additional development of the claim, is insufficient
to demonstrate clear evidence of error.27 The Board finds that this evidence, however, is
insufficient to establish that OWCP erred in its denial of appellant’s claim.28
Appellant did not submit the type of positive, precise, and explicit evidence that manifests
on its face that OWCP committed an error.29 Thus, she did not demonstrate clear evidence of error
in the denial of her schedule award claim.30
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed failed to
demonstrate clear evidence of error.

24

P.R., Docket No. 14-0300 (issued May 12, 2014).

25

G.B., Docket No. 13-1557 (issued October 29, 2013).

26

J.J., Docket No. 13-1363 (issued November 6, 2013).

27

Supra note 7.

28

See M.C., Docket No. 16-1135 (issued September 11, 2017); see also W.R., Docket No. 09-2336 (issued
June 22, 2010).
29

See A.S., Docket No. 16-0902 (issued September 28, 2016); J.T., Docket No. 10-0313 (issued February 24, 2010).

30

See A.S., id.; B.B., Docket No. 08-0232 (issued August 7, 2008).

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ORDER
IT IS HEREBY ORDERED THAT the August 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearny, NJ, Employer
__________________________________________

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

Docket No. 18-1491
Issued: February 13, 2019

Case Submitted on the Record

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

JURISDICTION
On July 31, 2018 appellant, through counsel, filed a timely appeal from a February 14,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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
ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar injury
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On August 17, 2017 appellant, then a 49-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she sustained sciatica and nerve pain due to factors of her
federal employment, which included pushing, pulling, and lifting of mail. She indicated that she
first became aware of her claimed condition on November 1, 2015 and its relationship to her
federal employment on August 7, 2017. On the reverse side of the claim, appellant’s supervisor
noted that appellant first received medical care on April 1, 2017. In addition, her supervisor related
that appellant stopped work on July 27, 2017 and returned to work on August 8, 2017.
In a development letter dated September 5, 2017, OWCP acknowledged receipt of
appellant’s claim and informed her that the evidence submitted was insufficient to establish her
claim. It provided a factual questionnaire for her completion and requested medical evidence in
support of her claim. By separate letter of the same date, OWCP requested that the employing
establishment provide additional factual information regarding the circumstances surrounding
appellant’s claim, including a statement from a knowledgeable supervisor regarding the accuracy
of appellant’s statements relative to her claim. It afforded appellant and the employing
establishment 30 days to submit the requested evidence.
In a response dated September 20, 2017, the employing establishment noted that it did not
concur with appellant’s allegations of injury. It related that it had provided her with safety training
which included the techniques of safe lifting, bending, pushing, and pulling equipment while at
work.
In response to the September 5, 2017 development letter, appellant indicated that she had
worked at the employing establishment since 1996 and that she had worked on a number of
different machines over the years.4 She related that her duties consisted of: pushing mail into the
machines; sweeping the machines of mail; loading sacks of mail weighing up to 70 pounds onto
2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
4

Appellant noted that she worked on the Optical Character Reader/Bar Code Scanner machine from 1996 to 1998,
the Small Parcel and Bundle Sorter machine from 1998 to 2009, the Automated Flat Sorting Machines 100 from 2009
to 2014, the High Speed Universal Sorter machine in 2014, and the Automated Packaging Procession System machine
from 2014 to present.

2

skids; pushing wire containers, hampers, pallets, and skids full of mail; loading mail onto a
conveyor belt; and culling mail. Appellant indicated that the constant lifting, pushing, and pulling
of mail for close to 20 years caused injury. She noted that she first noticed symptoms in
August 2015, but they gradually worsened.
In a narrative report dated October 2, 2017, Dr. Mark A.P. Filippone, Board-certified in
physical medicine and rehabilitation, related that he first examined appellant on August 7, 2017
and that he reexamined her on September 28, 2017. He noted that she complained of pain in her
low back, buttocks, thighs, calfs, feet, and big toes. During the physical examination, appellant
experienced pain, guarding, and spasm in the lumbar paraspinals bilaterally. Dr. Filippone
diagnosed bilateral lumbosacral radiculitis. He further indicated that he reviewed a magnetic
resonance imaging (MRI) scan of the lumbar spine conducted on January 1, 2017. Dr. Filippone
concurred with the findings of Dr. Michael Yuz, Board-certified in diagnostic radiology, that there
was straightening of the lumbar lordosis, a mild diffuse disc bulge and a superimposed broadbased central disc protrusion at L5-S1, bilateral facet joint arthropathy, and a mild disc bulge and
a superimposed broad-based left formainal/far lateral disc protrusion at L4-5. Regarding causal
relationship, he concluded that appellant’s pathology was directly the result of excessive pushing,
pulling, bending, and twisting of the low back, and opined that the pathology was caused solely
by her being overworked on the job as a mail handler.
By decision dated February 14, 2018, OWCP denied appellant’s claim. It noted that she
had established that the employment factors occurred as alleged and that a medical condition had
been diagnosed. However, OWCP found that the evidence of record failed to establish that
appellant’s diagnosed condition was causally related to the accepted employment factors. It noted
that the only medical evidence received was Dr. Filippone’s medical report dated October 2, 2017.
OWCP determined that this report was insufficient to establish appellant’s claim because the
physician provided no explanation of how any of the stated factors of her employment caused or
affected her condition. It explained that without a rationalized statement from her physician
explaining how her condition was caused by the accepted work factors, the evidence of record was
insufficient to establish her claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence6 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which compensation is claimed is causally related
to that employment injury.7
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
5

Supra note 2.

6

D.L., Docket No. 18-1007 (issued November 28, 2018); J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB
55, 58 (1968).
7

D.L., id.; G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship 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 the specific employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lumbar injury
causally related to the accepted factors of her federal employment.
Appellant submitted a narrative report from Dr. Filippone dated October 2, 2017. In this
report, Dr. Filippone documented his examination findings as well as the MRI scan results, and
diagnosed bilateral lumbosacral radiculitis, disc bulge at L5-S1 central disc protrusion, bilateral
facet joint arthropathy, and a mild disc bulge and a superimposed broad-based left formainal/far
lateral disc protrusion at L4-5. He opined that the pathology was directly related to lifting, pushing,
pulling, bending, and twisting due to appellant’s position as a mail handler. Dr. Filippone
concluded that excessive employment duties and overuse of the low back damaged discs caused
herniations. However, he did not provide a probative, rationalized opinion regarding how the
accepted work duties caused the claimed condition.11 In this report, Dr. Filippone only generally
described appellant’s repetitive work activities, and he did not sufficiently explain why, medically,
she would have sustained a low back condition due to these work duties.12 The Board has held
that medical evidence which does not offer a clear opinion explaining the physiological cause of
an employee’s condition is of limited probative value on the issue of causal relationship.13 The
Board has held that a mere conclusion without the necessary rationale explaining how appellant’s
specific accepted work duties could result in the diagnosed condition is insufficient for her to meet
her burden of proof.14 Thus, the Board finds that Dr. Filippone’s report is insufficient to meet her
burden of proof.

8

D.L., id.; R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

9

D.L., id.; I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

10

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

11
M.G., Docket No. 18-0654 (issued October 17, 2018); see George Randolph Taylor, 6 ECAB 986, 988 (1954)
(where the Board found that a medical opinion not fortified by medical rationale is of little probative value).
12

Id.

13

L.J., Docket No. 17-1993 (issued March 13, 2018); see R.B., Docket No. 16-1700 (issued September 25, 2017).

14

M.G., supra note 11; see J.S., Docket No. 18-0477 (issued August 28, 2018).

4

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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a lumbar injury
causally related to the accepted factors of federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0493
Issued: March 4, 2022

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 15, 2021 appellant, through counsel, filed a timely appeal from a
December 17, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the December 17, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions as causally related to the accepted January 1, 2005
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 22, 2005 appellant, then a 65-year-old lead screener, filed a notice of
recurrence (Form CA-2a) alleging that on January 1, 2005 he experienced a recurrence of a
previously accepted cervical spine condition. 5 He stopped work on February 12, 2005 and did not
return. OWCP developed the claim as one for a new occupational disease (Form CA-2). On
May 5, 2005 it accepted a lumbar strain, cervical thoracic strain, and lumbar radiculopathy. On
July 27, 2005 OWCP expanded its acceptance of the claim to include the additional diagnosis of
an L4-5 disc herniation.
On August 29, 2005 appellant underwent an OWCP-authorized laminectomy, facetectomy,
and foraminotomy at L4 and L5. OWCP paid wage-loss compensation. It placed appellant on the
periodic rolls, effective February 19, 2006.
Appellant underwent a series of OWCP-authorized cervical facet block and cervical
epidural injections from January 12 through July 18, 2007, and lumbar epidural steroid injections
on August 28, 2007.6 From December 30, 2014 through January 23, 2017, he also underwent a
series of OWCP-authorized bilateral L3, L4, and L5 medial branch and dorsal ramus blocks,
OWCP-authorized bilateral radiofrequency ablation from L3 through L5, and OWCP-authorized
caudal and bilateral L4-5 transforaminal epidural steroid injections.
On May 30, 2017 OWCP obtained a second opinion regarding appellant’s work capacity
and the etiology of his continuing condition from Dr. Vicki Kalen, a Board-certified orthopedic
surgeon. In a June 21, 2017 report, Dr. Kalen opined that multilevel degenerative disc changes
visible on imaging studies were normal for appellant’s age, and that surgery had resolved the
accepted L4-5 disc herniation. She found that the accepted employment injuries had resolved
4

Docket No. 17-1423 (issued November 8, 2017).

5

Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx865 for a cervical strain.
OWCP administratively combined OWCP File Nos. xxxxxx840 and xxxxxx865, with OWCP File No. xxxxxx840
serving as the master file.
6

A January 23, 2006 cervical magnetic resonance imaging (MRI) scan demonstrated disc narrowing at C4-5, C5-6,
and C6-7 with degenerative disc bulges. A June 3, 2008 lumbar MRI scan demonstrated bilateral posterior
laminectomies at L4-5 with 5 millimeter (mm) anterolisthesis of L4 on L5, increased since a March 4, 2005 study,
resulting in bilateral neural foraminal narrowing, with possible compression of the left exiting L4 nerve root, a
posterior osteophyte at L5-S1 contributing to moderate bilateral neural foraminal narrowing with contact of the exiting
L5 nerve roots bilaterally, mildly increased posterior disc bulge at L2 -3 with mild spinal canal and neural foraminal
narrowing, and moderate-to-severe facet arthropathy at L4-5. June 3, 2008 lumbar x-rays demonstrated a Grade 1
anterolisthesis of L4 on L5 with instability, and prominent degenerative disc disease present at L5 -S1.

2

without residuals. In a July 10, 2017 supplemental report, Dr. Kalen noted work restrictions
related to appellant’s age of 78 and age-related spinal complaints, unrelated to the employment
injury.
In a July 20, 2017 report, Dr. Russel R. Kinder, Board-certified in anesthesiology and pain
medicine, diagnosed a sprain of the ligaments of the cervical and lumbar spine. On September 6,
2017 he performed OWCP-authorized bilateral transforaminal epidural steroid injections at L4-5.
Dr. Kinder diagnosed lumbar radiculopathy. 7
On March 6, 2018 OWCP found a conflict of medical opinion between Dr. Kalen, for the
government, and Dr. Kinder, for appellant, regarding the relationship of appellant’s continuing
condition to the employment injury. To resolve the conflict, on March 20, 2018 OWCP referred
appellant for an impartial medical examination with Dr. Lowell Anderson, a Board-certified
orthopedic surgeon. In an April 18, 2018 report, Dr. Anderson, serving as the impartial medical
examiner (IME), reviewed appellant’s history of injury, medical records, and the statement of
accepted facts (SOAF). On examination, he observed restricted range of motion of the cervical
spine, paraspinal tenderness to palpation of the cervical spine, left intrascapular region, and
lumbosacral junction, possible mild weakness of the left lower extremity evident on toe -raise and
step testing, possible mild hamstring weakness in the left lower extremity, subjective dec reased
sensation in the second, third, and fourth fingers of the left hand, minimally decreased sensation
in the fifth finger of the left hand, limited lumbar range of motion, decreased sensation in the entire
left lower extremity, and negative seated straight leg raising tests bilaterally. Dr. Anderson also
noted that thigh circumference at 10 centimeters proximal to the patella was 51/49, right over left.
He diagnosed multilevel cervical spondylosis, cervical spinal stenosis, likely left upper extremity
radiculopathy symptoms related to nerve root irritation at multiple levels of the cervical spine,
central cervical stenosis related to genetic and age-related progression of a preexisting cervical
condition. Dr. Anderson opined that the accepted injury “with likely L4-5 herniated disc” and
surgery had resolved without residuals as it was “likely satisfactorily treated” by surgery. He noted
that appellant’s ongoing cervical and lumbar conditions were due only to age-related degenerative
changes. Dr. Anderson indicated that appellant had attained maximum medical improvement
“many years ago.” He found appellant unable to perform his date-of-injury position due to
nonoccupational, age-related degenerative changes of the cervical and lumbar spine.
On May 9, 2018 OWCP proposed to terminate appellant’s wage-loss compensation as he
was no longer disabled from work as a result of the accepted January 1, 2005 injuries, based on
Dr. Anderson’s opinion as the IME. It afforded him 30 days to respond.
In a letter dated June 6, 2018 appellant, through counsel, contended that Dr. Anderson
failed to differentiate between sequelae of the employment injury and age-related degenerative
changes. Appellant submitted a June 1, 2018 report by Dr. Xi Tian, Board-certified in
anesthesiology and pain medicine, diagnosing a ligamentous cervical spine sprain and chronic
postoperative pain.
By decision dated June 14, 2018, OWCP terminated appellant’s wage-loss compensation,
effective that day, based on the special weight accorded Dr. Anderson’s report as the impartial
7

A December 6, 2017 MRI scan of the cervical spine demonstrated moderate-to-severe spondylosis at C5-6, C6-7,
and C7-T1 with spinal stenosis, multiple areas of facet arthrosis, and neuroforaminal narrowing.

3

medical examiner. It noted that the decision did not affect appellant’s entitlement to medical
benefits.
On June 19, 2018 OWCP received a June 7, 2018 report by Dr. Tian, diagnosing a sprain
of ligaments of cervical spine.
In a June 22, 2018 report, Dr. Richard Wohns, a Board-certified neurosurgeon, noted the
accepted January 1, 2005 occupational injury and diagnosed cervical stenosis, cervical
radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. 8 He opined that the
January 1, 2005 employment aggravated or activated these latent, asymptomatic conditions. 9
On July 3, 2018 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held November 14, 2018.
In a December 11, 2018 letter, counsel asserted that OWCP should expand its acceptance
of the claim to include an L5-S1 disc herniation, lumbar stenosis, and failed back syndrome.
Appellant submitted additional evidence.
By decision dated January 29, 2019, an OWCP hearing representative affirmed the
June 14, 2018 termination decision.
On February 11, 2019 OWCP received a November 1, 2018 report by Dr. Wohns, in which
he opined that appellant’s cervical and lumbar conditions were caused by repetitive flexion and
extension of the upper and lower body while lifting and throwing heavy luggage at work on
January 1, 2005. Dr. Wohns explained that appellant’s accepted lumbar sprain, cervical-thoracic
sprain, herniated L4-5 disc, and lumbar radiculitis had naturally progressed over time subsequent
to a failed L4-5 laminectomy. He listed additional diagnoses of cervical stenosis, cervical
radiculopathy, and bilateral occipital neuralgia. 10
On April 11, 2019 OWCP received a November 15, 2018 report by Dr. Tian, diagnosing
lumbago, other chronic postoperative pain, and a ligamentous lumbar sprain.
8

A July 11, 2018 MRI scan of the lumbar spine demonstrated central stenosis at L2 -3 with broad-based central
protrusion, L3-4 central stenosis with broad-based bulging, small central canal, and left foraminal and central disc
protrusion, degenerative spondylosis at L4-5 with marked narrowing of the right nerve root and marked flattening of
the existing L4 nerve, L5-S1 broad-based disc bulging and retrolisthesis with bilateral neuroforaminal narrowing, and
right S1 nerve root displacement.
9

Appellant consulted several other physicians in 2018 and 2019. In an October 25, 2018 report, Dr. David
Hoffman, a Board-certified family practitioner, referred him to a pain management clinic. In a January 10, 2019
report, Dr. Darin Blackburn, a Board-certified family practitioner, noted treating appellant since the January 1, 2005
employment injury. He opined that appellant’s injury-related cervical and lumbar spine symptoms had not resolved
and necessitated work limitations. In reports dated January 25 and April 10, 2019, Dr. Michael J. Martin, a Boardcertified orthopedic surgeon, noted a history of the accepted January 1, 2005 employment injury and subsequent
treatment. On examination he noted slightly diminished cervical and lumbar lordosis, and limited range of cervical
and lumbar spine motion. Dr. Martin recommended physical therapy.
10

A March 8, 2019 MRI scan of the cervical spine and April 9, 2019 MRI scans of the thoracic and lumbar spine
demonstrated degenerative changes throughout the spine as evident on prior imaging studies. The April 9, 2019
lumbar MRI scan demonstrated a midline laminectomy with excellent decompression of the spinal canal at L4-5 and
L5-S1.

4

In July 1, 2019 and January 8, 2020 reports, Dr. Wohns opined that appellant required a
C5-6 and C6-7 anterior cervical discectomy and fusion, and extension of the prior lumbar
laminectomy to include L2 and L3 due to severe lumbar stenosis.
On January 16, 2020 appellant, through counsel, requested reconsideration of the
January 29, 2019 decision.
In a January 21, 2020 report, Dr. Wohns noted that the January 1, 2005 L4-5 laminectomy
had relieved appellant’s bilateral lower extremity radiculopathy, but that sharp, persistent lumbar
pain remained. He diagnosed bilateral occipital neuralgia, cervical radiculopathy, cervical
stenosis, cervical pain, lumbar stenosis with neurogenic claudication, mid back pain, and low back
pain.11
By decision dated January 29, 2020, OWCP denied modification of the prior decision.12
In a February 4, 2020 report, Dr. Wohns diagnosed cervical stenosis of the spinal canal,
lumbar stenosis with neurogenic claudication, and mid-back pain. He ordered a cervical MRI scan.
A June 25, 2020 MRI scan of the cervical spine demonstrated left C2-3 facet arthropathy,
a mild C3-4 disc protrusion with facet arthropathy and bilateral bony foraminal stenosis, possible
partial bony fusion of the endplates and right facets at C4-5 with mild bony stenosis of the right
foramen, degenerative disc narrowing at C5-6 with posterior disc protrusion and central canal
narrowing, partial desiccation of the C6-7 disc with diffuse posterior disc protrusion and central
canal narrowing, and mild anterolisthesis of C7 on T1 with mild posterior disc protrusion and facet
arthropathy.
In a July 20, 2020 report, Dr. Wohns opined that the June 25, 2020 MRI scan demonstrated
the need for a C5-6 andC6-7 microdiscectomy and fusion, to be followed by L2 to L4
laminectomies and foraminotomies.
In an August 13, 2020 letter, counsel requested that OWCP expand its acceptance of
appellant’s claim to include additional conditions as noted by Dr. Wohns. She submitted August 4
and November 17, 2020 letters by Dr. Wohns, who related appellant’s account that the January 5,
2005 employment incident caused the sudden onset of excruciating “electric shock-like pain”
throughout his neck and back, radiating into his head and all extremities. Dr. Wohns explained
that the employment injury caused a herniated lumbar disc “due to a mechanical strain between
two vertebrae, as he twisted to throw the luggage.” He opined that the employment incident also
caused spondylosis and radiculopathy at C5-6, C6-7, and C7-T1 due to strain in his spine “and
shoulder as he twisted to throw the heavy luggage.” Dr. Wohns reiterated that the January 5, 2005
employment injury directly caused or aggravated preexisting cervical stenosis of the spinal canal,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain.
11

In a January 17, 2020 report, Dr. Kathy Wang, an osteopathic physician Board-certified in anesthesiology,
administered a discogram with provocative lumbar discography at L2 -3, L3-4, and L5-S1, which demonstrated
nonconcordant pain at L2-3, L3-4, and L4-5.
12

On July 27, 2020 appellant, through counsel, appealed the January 29, 2020 merit decision to the Board. By
decision dated February 9, 2022, the Board reversed the January 29, 2020 decision, finding that IME Dr. Anderson’s
report was inconsistent with the SOAF. Docket No. 20-1442 (issued February 9, 2022).

5

On November 17, 2020 OWCP referred the medical record and SOAF to Dr. Michael M.
Katz, a Board-certified orthopedic surgeon serving as OWCP’s district medical adviser, for an
opinion on whether the accepted employment injury caused additional conditions. Dr. Katz
submitted a November 19, 2020 report in which he reviewed the medical record and SOAF. He
disagreed with Dr. Wohns’ support for causal relationship, as appellant’s cervical spine conditions
were present prior to a January 23, 2006 MRI scan, and the accepted cervical spine sprain was a
self-limiting condition. Dr. Katz opined that appellant’s cervical spondylosis, cervical stenosis,
and bilateral occipital neuralgia were due to the aging process and “natural history of the
degenerative conditions of the cervical spine” rather than a neck sprain. He commented that the
proposed diagnosis of low back pain was vague, and duplicative of the accepted lumbar conditions,
which were known to produce low back pain.
By decision dated December 17, 2020, OWCP denied expansion of the claim to include
additional conditions, as they appeared to be preexisting or degenerative in nature, unrelated to the
accepted January 1, 2005 employment injury. It accorded the weight of the medical evidence to
the opinion of Dr. Katz.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.14 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 accepted employment injury. 15 The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.16
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. 17 When there are opposing reports of virtually

13

J.R., Docket No. 20-0292 (issued June 26, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

E.W., Docket No. 20-0338 (issued October 9, 2020).

15

L.P., Docket No. 20-0609 (issued October 15, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

16

C.L., 20-0213 (issued September 15, 2021); J.L., Docket No. 20-0717 (issued October 15, 2020); James Mack,
43 ECAB 321 (1991).
17

5 U.S.C. § 8123(a); D.B., Docket No. 19-0663 (issued August 27, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

6

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. 18
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his request for claim expansion, appellant submitted reports dated June 22,
2018 through November 17, 2020 by Dr. Wohns. In a June 22, 2018 report, Dr. Wohns opined
that the January 1, 2005 employment injury aggravated or activated latent cervical stenosis,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. He
indicated, in July 1, 2019, January 8, 2020 and July 20, 2020 reports, that sequelae of the
January 1, 2005 injury required C5-6 and C6-7 anterior discectomy and fusion, and extension of a
prior lumbar laminectomy to L2-3. Dr. Wohns explained in his August 3, 2020 letter that
repetitive flexion and extension of the upper and lower body while lifting and throwing heavy
luggage at work on January 1, 2005 caused the additional cervical and lumbar conditions. In his
November 17, 2020 letter, he attributed C5-6, C6-7, and C7-T1 radiculopathy to a strain in
appellant’s spine and shoulder as he twisted to throw heavy luggage on January 5, 2005.
In a November 19, 2020 report, Dr. Katz advised that Dr. Wohns’ reports failed to support
a causal relationship between the January 1, 2005 employment injury and cervical spondylosis,
cervical stenosis, and bilateral occipital neuralgia. He opined that these diagnoses were preexisting
conditions unrelated to the January 1, 2005 employment injury, and that the diagnosis of low back
pain was vague and duplicative.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint an impartial medical specialist who shall make an
examination. 19 The Board finds that a conflict exists between the appellant’s treating physician,
Dr. Wohns, and the DMA, Dr. Katz, regarding whether the claim should be expanded to include
additional cervical conditions.
Therefore, the case must be remanded to OWCP for referral of appellant to an impartial
medical specialist for resolution of the conflict in medical opinion evidence in accordance with
5 U.S.C. § 8123(a).20 After this and other such further development as OWCP deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

18

D.B., id., D.W., Docket No. 18-0123 (issued October 4, 2018).

19

A.R., Docket No. 19-1204 (issued February 25, 2021); see S.S., Docket No. 19-1658 (issued November 12, 2020);
C.S., Docket No. 19-0731 (issued August 22, 2019).
20

A.R., id.; S.M., Docket No. 19-0397 (issued August 7, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
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

8