United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, New Orleans, LA, Employer
__________________________________________

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

Docket No. 10-2039
Issued: May 13, 2011

Case Submitted on the Record

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

JURISDICTION
On August 5, 2010 appellant, through his attorney, filed a timely appeal from a June 22,
2010 decision of the Office of Workers’ Compensation Programs affirming the termination of
his compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 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 the Office properly terminated appellant’s compensation for wageloss and medical benefits effective February 14, 2010 on the grounds that he no longer had any
residuals or disability causally related to his accepted employment-related injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 22, 2008 appellant, then a 49-year-old temporary database management
specialist, filed a traumatic injury claim alleging that on that day he scraped his right knee when
he tripped over petition footing. The Office accepted the claim for a friction burn or abrasion of
the leg, which was subsequently expanded to include a lumbar sprain.2 By letter dated
March 25, 2009, it placed appellant on the periodic rolls for temporary total disability.
In a November 10, 2009 work capacity evaluation (Form OWCP-5c), Dr. Charles R.
Billings, a treating Board-certified orthopedic surgeon, checked “yes” to the question of whether
appellant was capable of performing his usual job.
On December 10, 2009 the Office issued a notice proposing to terminate appellant’s
compensation based on the November 10, 2009 form report from Dr. Billings, his treating
physician, indicating that he was capable of performing his usual work duties.
In a December 15, 2009 progress note, Dr. Billings diagnosed chronic lumbar strain and
noted that appellant believed he was disabled from work due to pain. He indicated that appellant
was capable of performing light or sedentary work and recommended a work hardening program.
By decision dated January 12, 2010, the Office finalized the termination of appellant’s
compensation benefits effective February 14, 2010. It found the weight of the medical and
factual evidence established that his accepted employment injury no longer precluded him from
performing the duties of his date-of-injury job.
On January 25, 2010 appellant’s counsel requested a telephonic hearing, which was held
on April 6, 2010.
By decision dated June 22, 2010, the Office hearing representative affirmed the
November 3, 2009 decision terminating appellant’s compensation benefits.3
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

2

Appellant was terminated from the employing establishment effective September 22, 2008.

3

The Board notes that, following the March 19, 2009 hearing representative’s decision, the Office received
additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c)(1);
J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A.
Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued September 23, 2009).
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

2

the employment.5 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
ANALYSIS
The Office based its termination of compensation benefits on a November 10, 2009
OWCP-5c report from Dr. Billings, who had treated appellant since his injury. Dr. Billings did
not provide a history or results on examination. On the form report, he checked a box yes that
appellant was capable of performing his regular job without further explanation.
As noted above, a rationalized medical opinion is one based on a complete factual and
medical background and supported by medical rationale. Dr. Billings did not provide a complete
factual and medical background or a rationalized medical opinion on the issue presented.9 It is
the Office’s burden of proof to terminate compensation for wage-loss and medical benefits, and
the Office cannot meet its burden with an unrationalized medical report that is of little probative
value, even if it is from appellant’s treating physician. The weight of medical evidence, as
discussed above, is based on its convincing quality and the care of the analysis manifested. The
Board finds that the evidence of record is not sufficient to meet the Office’s burden of proof to
terminate compensation for wage-loss and medical benefits effective February 14, 2010.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate
compensation for wage-loss and medical benefits effective February 14, 2010.

5

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988); I.R., Docket No. 09-1229 (issued
February 24, 2010).
7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
8

Kathryn E. Demarsh, supra note 7; James F. Weikel, 54 ECAB 660 (2003); B.K., Docket No. 08-2002 (issued
June 16, 2009).
9

It is well established that a checkmark “yes” on a form question is of diminished probative value. Sedi L.
Graham, 57 ECAB 494 (2006); Cecilia M. Corley, 56 ECAB 662 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2010 is reversed.
Issued: May 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4


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

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

Docket No. 11-1883
Issued: April 5, 2012

Case Submitted on the Record

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

JURISDICTION
On August 15, 2011 appellant, through his attorney, filed a timely appeal of a June 8,
2011 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying an injury.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his cervical
conditions are causally related to his employment activities.
FACTUAL HISTORY
On April 20, 2010 appellant, then a 47-year-old mail handler, filed a notice of recurrence
of disability claim under claim number xxxxxx089 alleging that on February 1, 2010 he
sustained a recurrence of disability of his August 13, 1986 injury. He stated that while moving
1

5 U.S.C. § 8101 et seq.

trays of mail from tray cart to the top of the postcon he started to feel tightness and then pain in
the right side of his neck and shoulder with pain shooting down into his right arm. Appellant
indicated that the more trays of mail he moved, the more severe the pain got. He stopped work
on February 1, 2010. Appellant eventually returned to full-duty work. No evidence was
submitted in support of appellant’s claim.
In a May 3, 2010 letter, OWCP informed appellant that as he had identified new work
factors, moving trays of mail, he was describing a new traumatic injury rather than a recurrence
of disability. Accordingly, the claim for recurrence of disability was developed as a new
traumatic injury claim and assigned claim number xxxxxx827. Also in a May 3, 2010 letter,
OWCP advised appellant of the deficiencies in his claim and asked that he provide additional
factual and medical evidence, which included a rationalized medical opinion on whether the
diagnosed condition was caused or related to the work incident, to support his claim.
In response, OWCP received a May 6, 2010 statement, diagnostic tests, February 1, 2010
after care instructions from Saint Barnabas Medical Center, return to work and prescription slips,
and medical reports and medical notes. Return to work slips dated February 8 and 24 and
March 3 and May 12, 2010 contained diagnosis of arthritis and cervical sprain and strain. In a
February 5, 2010 report, Dr. Nizar Souayah, a Board-certified psychiatrist and neurologist, noted
the history of the 1986 work injury and that since that time appellant has experienced right
shoulder and right neck pain. An assessment of C-spine disc herniation, extended degenerative
joint disease, radiculopathy without myelopathy and chronic lumbosacral spine disc degenerative
disease with radiculopathy or peripheral length-dependent sensory neuropathy was provided.
Reports from Dr. Robert A. Marini, a Board-certified physiatrist, were received. In a
March 23, 2010 report, Dr. Marini noted that appellant had progressive cervical pain since a
1986 injury while lifting a heavy box. An impression of cervical neck pain and cervical
degenerative joint disease was provided. In a May 18, 2010 report, Dr. Marini indicated that
appellant initially presented on January 23, 2010. Appellant related that while moving trays of
mail from a cart he experienced acute discomfort to the cervical spine referred to the right
shoulder and right upper extremity. Dr. Marini stated that during the interim appellant
underwent a series of cervical facet injections with some response. He noted evaluation findings
of May 12, 2010 and recommended bilateral cervical radiofrequency to the C4-5 and C5-6.
Dr. Marini opined that appellant was disabled due to acute cervical derangement. He further
opined that the injury sustained to the cervical spine appeared to be causally related to the
February 1, 2010 work incident.
By decision dated June 7, 2010, OWCP denied appellant’s claim on the grounds that the
medical evidence was insufficient to establish that the identified medical conditions were
causally related to the accepted work event.
On June 11, 2010 appellant requested reconsideration. Evidence submitted included
duplicative evidence already of record plus new evidence that included a June 8, 2010 statement
from appellant, a picture of the body with a pain scale with different areas highlighted to show
pain, a February 17, 2010 diagnostic test and a June 9, 2010 excuse slip from Dr. Marini
diagnosing cervical radiculopathy.

2

In a June 9, 2010 report, Dr. Marini diagnosed cervical root lesion, not elsewhere
classified; degeneration cervical intervertebral disc and cervicalgia.
By decision dated July 6, 2010, OWCP denied modification of the June 7, 2010 decision.
On August 4, 2010 appellant requested reconsideration. Evidence previously of record
was provided along with new evidence that included letters from appellant, an August 25, 2010
medical report from Charles Kutzer, a podiatrist, discussing a prior foot injury, prescription slips
from Dr. Marini dated June 30, 2010 and a June 30, 2010 excuse slip from Dr. Marini diagnosing
cervical radiculitis/neuropathy.
In progress reports dated June 30 and July 21, 2010, Dr. Marini diagnosed the conditions
of cervical root lesion, not elsewhere classified; degeneration of cervical intervertebral disc and
cervicalgia. No opinion regarding the relationship of the diagnosed conditions to the February 1,
2010 injury was provided. In a July 28, 2010 report, Dr. Marini noted that appellant stated that
he injured his cervical spine from lifting trays of mail from a lower bin to waist high on
February 1, 2010. He diagnosed cervical derangement and cervical radiculopathy secondary to
C4-5 herniated disc. Dr. Marini opined that appellant had an injury to the cervical spine as a
result of the February 1, 2010 incident while he was working.
By decision dated September 28, 2010, OWCP denied modification of the July 6, 2010
decision.
On November 4, 2010 appellant requested reconsideration. He submitted copies of
evidence already of record along with statements, requests for authorization, prescriptions for
therapy and physical therapy notes.
In progress reports dated December 7, 2010 and January 4 and February 9, 2011,
Dr. Ismail Alhamrawy, a Board-certified physiatrist, noted that appellant was working at his job
on February 1, 2010 where he lifted and twisted while carrying a tray weighing about 30 pounds
and he experienced severe neck pain and radicular pain at the right side of the arm. He advised
that neck pain was triggered by lifting the tray at work and resulted in cascading effects.
Dr. Alhamrawy noted that appellant has been seeing Dr. Marini for the same reason since
March 2010. He noted that appellant started his job about two months earlier on full duty and
has done well with physical therapy. An assessment of cervical root lesion, not elsewhere
classified, and degeneration of cervical intervertebral disc was provided.
By decision dated June 8, 2011, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within applicable time limitation;
2

5 U.S.C. §§ 8101-8193.

3

that an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
There is no dispute that appellant was moving trays of mail from a tray cart at work on
February 1, 2010. However, the Board finds that the medical evidence of record is insufficient
to establish that his cervical condition was caused or aggravated by the February 1, 2010
employment incident.
Numerous reports were received from Dr. Marini. In his May 18, 2010 report, Dr. Marini
noted the February 1, 2010 work incident and opined that appellant’s acute cervical derangement
appeared to be causally related to the February 1, 2010 work incident. In his July 28, 2010
report, Dr. Marini diagnosed cervical derangement, cervical radiculopathy secondary to
herniated disc at C4-5 and opined that appellant sustained an injury to his cervical spine on
3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

4

February 1, 2010. These reports are of diminished probative value because Dr. Marini failed to
provide medical rationale explaining how the accepted work incident of moving trays of mail
caused or aggravated the above-stated diagnosed conditions.10 Dr. Marini’s March 23, 2010
report attributed appellant’s condition to the 1986 injury that is not before the Board on the
present appeal. Other reports and records from Dr. Marini are insufficient as they also did not
provide a medical opinion addressing the causal relationship between appellant’s neck condition
and the accepted February 1, 2010 employment incident. Medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value.11 For
the stated reasons, the Board finds that Dr. Marini’s reports are insufficient to establish
appellant’s claim.
Progress reports from Dr. Alhamrawy are also insufficient to establish the claim.
Dr. Alhamrawy noted the history of the February 1, 2010 incident and opined that appellant’s
neck pain was triggered by lifting the tray at work and resulted in cascading effects. But he did
not explain why lifting the tray at work caused or aggravated diagnosed conditions nor did he
specifically explain how this caused cascading effects. Dr. Alhamrawy failed to provide a
medical opinion addressing whether the diagnosed cervical conditions were causally related to
the February 1, 2010 employment incident. Thus, his reports are insufficient to establish the
claim as he did not provide clear medical reasoning that supported his conclusion on causal
relationship.
Dr. Souayah diagnosed C-spine disc herniation, extended degenerative joint disease,
signs of radiculopathy without myelopathy and chronic lumbosacral spine disc degenerative
disease with radiculopathy or peripheral length-dependent sensory neuropathy. He failed to note
the February 1, 2010 work incident or provide a medical opinion addressing the causal
relationship between appellant’s diagnosed conditions and the accepted incident. Medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value.12
The August 25, 2010 report from Charles Kutzer, a podiatrist, is insufficient to establish
the claim as it does not address appellant’s current claim regarding his cervical conditions. Other
medical evidence, such as diagnostic test reports, are also insufficient as they do not specifically
address how the February 1, 2010 work incident caused or aggravated a diagnosed condition.
Physical therapy records are also insufficient as they do not constitute competent medical
evidence since a physical therapist is not a physician as defined under FECA.13

10

See Gloria J. McPherson, 51 ECAB 441 (2000) (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).
11

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

12

See id.

13

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

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The Board thus finds that appellant has not met his burden of proof to establish causal
relationship.
On appeal, appellant’s attorney contended that Dr. Marini’s July 28, 2010 report should
have been sufficient to establish causal relationship. As stated, this evidence does not provide a
rationalized medical opinion explaining the causal relationship between appellant’s diagnosed
cervical conditions and the accepted February 1, 2010 employment incident.
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 failed to establish that he sustained a cervical
condition in the performance of duty on February 1, 2010 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 5, 2012
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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__________________________________________ )
B.R., Appellant

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

Docket No. 08-252
Issued: June 10, 2008

Case Submitted on the Record

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

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from a September 19, 2007 Office
of Workers’ Compensation Programs’ merit decision. Under 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish continuing
disability after April 6, 2006.
FACTUAL HISTORY
This is the fourth appeal before the Board. On April 4, 1988 appellant, a 31-year-old
aircraft mechanic, injured his right knee while in the performance of duty. The Office accepted
the claim for internal derangement of the right knee. Appellant stopped work in September 1988
and returned to work briefly in 1989. The Office placed him on the periodic rolls. Appellant
was referred for vocational rehabilitation and retrained as an automobile mechanic technician.
He accepted a modified-duty job as an automobile mechanic in 1994. By decision dated June 21,

1996, the Office reduced appellant’s wage-earning capacity based on his actual earnings as an
automobile mechanic technician. On July 26, 1996 appellant requested reconsideration of the
June 21, 1996 decision, seeking the resumption of total disability compensation as of
December 19, 1996. By decision dated October 3, 1996, the Office denied the claim. By
nonmerit decision dated January 28, 1997, the Office denied reconsideration. In a January 6,
2000 decision, the Board found that the Office improperly failed to reopen appellant’s case for a
merit review.1 On remand, the Office, in a February 4, 2000 decision, found that appellant
submitted sufficient medical evidence to establish that he was entitled to wage-loss
compensation for total disability beginning December 19, 1996.
In a work capacity evaluation dated July 25, 2005, Dr. Abraham Abdo, appellant’s
treating physician, stated that maximum medical improvement had been reached and that
appellant was capable of performing his usual job with no restrictions.2
In a notice of proposed termination dated March 6, 2006, the Office, based on Dr. Abdo’s
report, found that the weight of the medical evidence demonstrated appellant was no longer
disabled due to his April 4, 1988 employment injury. The Office allowed appellant 30 days to
submit additional evidence or legal argument in opposition to the proposed termination. By
decision dated April 6, 2006, the Office terminated appellant’s compensation benefits. By
decision dated May 26, 2006, the Office denied modification of the April 6, 2006 termination
decision.
By letter dated June 2, 2006, appellant requested reconsideration. He submitted a June 6,
2006 report from Dr. Abdo, who stated, “[t]he work capacity evaluation that was filled out on
July 25, 2005 is for tune-up mechanic, [for] which the job description [is] attached. I have not
done a work capacity evaluation for an aircraft mechanic.”
By decision dated August 2, 2006, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
In an August 7, 2007 decision, the Board affirmed the April 6 and May 26, 2006
decisions, finding that Dr. Abdo’s July 25, 2005 work capacity evaluation constituted sufficient
medical evidence to terminate compensation. However, the Board set aside the August 2, 2006
nonmerit decision, finding that the Office erred in failing to consider relevant and pertinent new
evidence, i.e., Dr. Abdo’s June 6, 2006 report. The Board remanded the case for a merit
decision. The complete facts of this case are set forth in the Board’s prior decisions and are
incorporated herein by reference.3
1

Docket No. 98-336 (issued January 6, 2000).

2

By order dated January 17, 2006, the Board dismissed an appeal by appellant on the grounds that the record did
not contain a final decision over which it had jurisdiction. Docket No. 05-1385.
3

Docket No. 06-2100 (issued August 7, 2007). The Board notes that the case file is incomplete, as it does not
contain much of the documentation pertaining to the procedural development of this case. However, the instant
record does contain a June 1, 2001 Office decision, which includes sufficient references to the pertinent decisions,
findings and procedural occurrences in the case for the Board to render an informed adjudication.

2

By decision dated September 19, 2007, the Office denied modification of the April 6,
2006 termination decision. The Office found that Dr. Abdo’s June 6, 2006 report did not provide
sufficient medical rationale to establish that appellant was disabled due to residuals of his
accepted 1988 employment injury. It noted that Dr. Abdo had previously found that appellant
return to work without restriction and that the new medical evidence did not address disability
for work.
LEGAL PRECEDENT
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.4 If
the Office meets its burden of proof in justifying termination of compensation benefits, the
burden is on the claimant to establish that any subsequent disability is causally related to the
accepted employment injury.5
ANALYSIS
Following the termination of appellant’s compensation benefits on April 6, 2006,
appellant submitted a June 6, 2006 note from Dr. Abdo. He stated that his prior July 25, 2005
work capacity evaluation was for a tune-up mechanic position description, not appellant’s dateof-injury position as an aircraft mechanic. Dr. Abdo did not address the issue of disability for
work. He did not provide an opinion on whether appellant was totally disabled due to residuals
of his accepted condition following the termination of compensation in 2006.
As noted, the July 25, 2005 work capacity evaluation from Dr. Abdo, appellant’s treating
physician, found that appellant had reached maximum medical improvement and that he was
able to perform work without restrictions. The July 25, 2005 work capacity evaluation stated
that appellant could work his usual job for eight hours without restrictions. The June 6, 2006
report does not provide any opinion that appellant remains disabled due to the accepted
employment injury. Dr. Abdo’s June 6, 2006 note is not probative on the issue of continuing
disability after April 6, 2006. The Board will affirm the September 19, 2007 Office decision.
CONCLUSION
The Board finds that appellant has not established disability on or after April 6, 2006 due
to his accepted injury.

4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Darlene R. Kennedy, 57 ECAB 414 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sioux Falls, SD, Employer
__________________________________________

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

Docket No. 11-2132
Issued: August 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 13, 20111 appellant filed a timely appeal from a March 21, 2011 decision
of the Office of Workers’ Compensation Programs (OWCP) concerning the termination of her
compensation benefits. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on March 21, 2011, the 180-day computation begins March 22, 2011. One hundred and eighty
days from March 21, 2011 was September 19, 2011. Since using September 21, 2011, the date the appeal was
received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered
the date of filing. The date of the U.S. Postal Service postmark is September 13, 2011, which renders the appeal
timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation for
wage-loss and medical benefits effective August 7, 2009 on the grounds that she no longer had
any residuals or disability causally related to her accepted employment-related injury; and
(2) whether appellant had any continuing employment-related residuals or disability after
August 7, 2009.
FACTUAL HISTORY
On August 29, 2007 appellant, then a 49-year-old nurse, filed a traumatic injury claim
alleging that on that day she injured her shoulders and back in the performance of duty. OWCP
accepted the claim for right shoulder and upper arm strain and paid appropriate compensation.
In a July 14, 2008 progress note, Dr. William F. Bell, a treating physician, related that
appellant sustained a shoulder injury at work in August 2007. A physical examination revealed a
bluish and somewhat dusky right hand which was cool to the touch, no hyperdrosis, full wrist
range of motion, excellent strength with flexion and extension and no finger instability. Dr. Bell
diagnosed shoulder hand syndrome with reflex sympathetic dystrophy.
Dr. Bell provided reports responding to an August 13, 2008 OWCP letter authorizing
appellant’s change in physicians to him. On August 29, 2008 he related that he was unaware of
any significant x-ray or other imaging test findings. Dr. Bell diagnosed appellant’s reflex
sympathetic dystrophy or shoulder hand syndrome which he attributed to her shoulder injury as
there were no other precipitating or exacerbating factors. In a September 12, 2008 letter, he
related that he saw her almost a year after the August 2007 employment injury and had no
specific information regarding the injury. In a September 25, 2008 follow-up letter, Dr. Bell
related that appellant’s injury occurred when she grabbed a falling patient with her right arm and
referenced his July 14, 2008 progress notes for physical findings.
On November 17, 2008 OWCP referred appellant for a second opinion evaluation with
Dr. Anil Agarwal, a Board-certified orthopedic surgeon, to determine the nature and extent of
her disability. On December 3, 2008 Dr. Agarwal, based upon her employment injury history,
physical requirements for her date-of-injury nurse position, review of medical records and
physical examination, concluded that appellant sustained a temporary aggravation of her
preexisting right shoulder conditions, which have healed. Appellant reported complaints of
upper back, shoulder pain and occasional right hand/wrist pain. A physical examination revealed
normal shoulder, wrist and elbow range of motion, no tenderness, no crepitus, normal strength
and no effusion. X-ray interpretations taken by Dr. Agarwal showed no evidence of dislocation
or fracture and mild osteoarthritic changes in the glenohumeral and acromioclavicular joints.
Dr. Agarwal also found no loss of sensation, no atrophy and normal skin on physical
examination. He concluded that appellant had no disability or residuals from her accepted right
shoulder and upper arm strains. In support of his conclusions, Dr. Agarwal noted her physical
examination revealed no objective neuromuscular deficits, a magnetic resonance imaging (MRI)
scan revealed a partial thickness tear with preexisting glenohumeral joint arthritis and appellant
returned to her normal full-time duties as a data entry clerk.

2

On March 19, 2009 OWCP received an undated supplemental report from Dr. Agarwal
clarifying that he meant that appellant was capable of performing the duties of her nursing job
with no restrictions.
On April 20, 2009 OWCP received February and March 2009 progress notes from
Dr. John A. Hansen, a treating Board-certified occupational physician, in which he provided
physical findings and diagnosed chronic regional right arm pain syndrome. On February 24,
2009 Dr. Hansen noted that appellant was currently off work at his request. In his February 28
and March 17, 2009 reports, he found she was capable of working with restrictions on no lifting
more than 20 pounds. OWCP also received a July 22, 2008 report from Dr. Barry Hein, a
Board-certified anesthesiologist, who noted the injury history, provided physical findings and
diagnosed possible right arm chronic regional pain syndrome, type 1.
After reviewing OWCP’s amended statement of accepted facts, in a second supplemental
report, Dr. Agarwal reiterated his opinion that appellant was able to return to her date-of-injury
position.
On June 4, 2009 OWCP issued a notice proposing to terminate her compensation
benefits.
On June 29 and July 2, 2009 OWCP received additional progress notes from Dr. Hansen
for the period August 26, 2008 to June 2, 2009 which provided physical findings and treatment
for appellant’s right upper extremity chronic regional pain syndrome.
By decision dated August 10, 2009, OWCP finalized the termination of appellant’s
compensation benefits effective August 7, 2009.
On September 1, 2009 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on November 23, 2009.
In October 6, 2009 progress notes, Dr. Hansen, provided physical findings, treatment
provided and diagnosed chronic regional right arm pain syndrome.
By decision dated January 14, 2010, OWCP’s hearing representative affirmed the
termination of benefits.
On January 10, 2011 appellant requested reconsideration and presented argument and
evidence in support of her request. She contended that Dr. Agarwal’s report could not constitute
the weight of the evidence in light of disciplinary action taken against him. In support of this
argument, appellant submitted evidence regarding a complaint and disciplinary action filed
against him and his November 24, 2010 agreement to a voluntary limitation of his medical
license. The disciplinary action and complaint filed against Dr. Agarwal concerning his allowing
an individual who was not a student or had a temporary educational permit to perform limited
physical examinations. In the limitation of medical license agreement, he agreed to limit his
medical license in lieu of a disciplinary action being initiated by the State of Nebraska
Department of Health and Human Services Public Health Division. In this agreement,
Dr. Agarwal noted that he had sustained two strokes and willingly agreed to not performing

3

surgical procedures.
allowed.

All other privileges except for performing surgical procedures were

Appellant also submitted an October 8, 2010 progress report from Dr. Beth E. Lapka, an
examining Board-certified emergency medicine physician, who reported appellant had reflex
sympathetic dystrophy due to a lifting injury. Dr. Lapka provided physical findings and noted
appellant was treated for complaints of dizziness and near syncope.
By decision dated March 21, 2011, OWCP denied modification.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to 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.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
ANALYSIS -- ISSUE 1
OWCP accepted that on August 29, 2007 appellant sustained a right shoulder and upper
arm strain and paid appropriate compensation and medical benefits. It terminated her
compensation benefits effective August 7, 2009 finding that she no longer had any residuals or
disability that were due to her work injury.
On November 17, 2008 OWCP referred appellant to Dr. Agarwal for a second opinion
examination. It terminated her compensation based on its finding that his report constituted the
weight of the medical evidence and established that she had no further employment-related
disability. The Board has reviewed the opinion of Dr. Agarwal and finds that it has reliability,
probative value and convincing quality with respect to the conclusions reached. On December 3,
2008 Dr. Agarwal discussed the history of injury and appellant’s complaints of mild shoulder
and upper back pain and occasional right hand/wrist pain. On examination he found no evidence
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

Kathryn E. Demarsh, supra note 6; James F. Weikel, 54 ECAB 660 (2003).

4

of crepitus, no tenderness, no effusion, normal range of motion and normal skin. Dr. Agarwal
determined that appellant’s right shoulder and upper arm strain had resolved. He provided
rationale for his opinion by explaining that x-ray interpretation he took showed no evidence of
dislocation or fracture and mild osteoarthritic changes in the glenohumeral and
acromioclavicular joints and normal findings examination. Dr. Agarwal opined that appellant
had no work restrictions due to her employment injury and was capable of performing her
date-of-injury job as a nurse. The Board finds that his report, which is reasoned and based on a
properly factual and medical history, constitutes the weight of the evidence and establishes that
appellant’s right shoulder and upper arm strain have resolved.8
The remaining evidence submitted prior to OWCP’s termination of compensation is
insufficient to show that appellant remained disabled due to her work injury. Dr. Bell diagnosed
reflex sympathetic dystrophy or shoulder hand syndrome which he attributed to appellant’s
shoulder injury. He concluded that she was capable of working with a 20-pound lifting
restriction. Dr. Hein diagnosed possible right arm chronic regional pain syndrome, type 1.
Where an employee claims that a condition not accepted or approved by OWCP was due to her
employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.9 Neither Dr. Hein nor Dr. Bell provided any rationale
explaining how the conditions they diagnosed were caused by the accepted employment injury.
Thus, they are insufficient to create a conflict in the medical opinion evidence with
Dr. Agarwal’s opinion.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.10
ANALYSIS -- ISSUE 2
Given the Board’s finding that OWCP properly relied upon the opinion of Dr. Agarwal in
terminating compensation, the burden of proof shifts to appellant to establish that she remains
entitled to compensation after that date.11
Following the termination of her benefits, appellant submitted evidence regarding
disciplinary action taken against Dr. Agarwal by the State of Nebraska Department of Health and
Human Services Public Health Division and medical reports from Drs. Lapka and Hansen.
In October 6, 2009 progress notes, Dr. Hansen diagnosed chronic regional right arm pain
syndrome, which was not accepted by OWCP. Dr. Lapka, in an October 8, 2010 progress report,
8

See K.E., Docket No. 08-1461 (issued December 17, 2008); E.J., 59 ECAB 695 (2008).

9

Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 ECAB 638 (2000).

10

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

11

See Manual Gill, 52 ECAB 282 (2001).

5

diagnosed reflex sympathetic dystrophy due to a lifting injury, which has not been accepted by
OWCP. As noted above, it is appellant’s burden of proof to establish that a specific condition is
employment related with respect to accepted employment injury.12 It is also her burden of proof
to establish continuing residuals or disability after a proper termination.13 As neither Dr. Lapka
nor Dr. Hansen addressed the relevant issue of whether appellant had any further
employment-related disability due to the accepted conditions of right shoulder and upper arm
strain, their opinions are of diminished probative value.
Appellant argued on reconsideration that Dr. Agarwal’s opinion was of diminished
probative value in view of the disciplinary action taken by the State of Nebraska Department of
Health and Human Services Public Health Division and the complaint she filed against him and
submitted supporting documentation. She asserted that these documents show that he did not
personally conduct the physical examination of her and thus his opinion that she had no
work-related disability after August 7, 2009 is not entitled to the weight of the evidence.
This case can be distinguished from that of Geraldine Foster.14 In Geraldine Foster
appellant in that case asserted that the report of an impartial medical specialist selected by
OWCP was not entitled to special weight. She submitted copies of state court decisions in which
judges found that the physician had provided false testimony and engaged in other
unprofessional conduct. The Board reversed the termination of appellant’s compensation
benefits, in part, because the evidence indicated that the physician was not an appropriate choice
for an impartial medical specialist resolving a conflict of medical opinion in a claim under
FECA.
The case at hand involves a state board rather than a court and a second opinion physician
rather than an impartial medical examiner. As noted above the current case is dissimilar to
Foster in that the State of Nebraska Department of Health and Human Services Public Health
Division did not issue a disciplinary action finding any conduct of the physician to be
inappropriate and unprofessional. The November 24, 2010 settlement agreement between
Dr. Agarwal and the State of Nebraska Department of Health and Human Services Public Health
Division states that the voluntary limitation on his medical license was made in lieu of the
initiation of disciplinary action by the State of Nebraska. The settlement agreement with
Dr. Agarwal states that he shall not perform surgical procedures, and that all other privileges are
allowed.
Furthermore, the facts of the current case are similar to the Board’s decision in Jewell F.
Milby. Both the claimant in Geraldine Foster and the claimant in Milby asserted that the report
of an impartial medical specialist selected by OWCP was not entitled to special weight. The
claimant in Milby submitted documents from the Kentucky Board of Medical licensure
documenting complaints by patients and a February 20, 1992 order of probation. The record also
15

12

Jaja K. Asaramo, supra note 9.

13

I.J., 59 ECAB 408 (2008); Joseph A. Brown, Jr., 55 ECAB 542 (2004).

14

54 ECAB 435 (2003).

15

Docket No. 01-1763 (issued April 24, 2002).

6

contained evidence that the February 20, 1992 order of probation had been vacated and set aside.
The Board found that as the record contained no evidence that the physician in question had been
suspended from medical practice and his probation had been subsequently vacated and set aside,
that the physician had been properly selected as an impartial medical specialist. Thus, the Board
affirmed the termination of her compensation benefits and the finding that she had no continuing
residuals due to her accepted employment injuries.
The Board finds that while appellant asserts that Dr. Agarwal did not perform a proper
examination and assessment, there is insufficient evidence to establish this is a fact. In addition,
the record contains no evidence that Dr. Agarwal had been suspended from medical practice,
been put on probation or had any disciplinary action taken. Therefore Dr. Agarwal’s report
continues to constitute the weight of the evidence establishing that appellant’s accepted
conditions had resolved by August 7, 2009 with no residuals or disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
August 7, 2009 on the grounds that her work-related injury ceased. The Board further finds that
appellant did not meet her burden of proof to establish that she had any continuing residuals after
August 7, 2009.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2011 is affirmed.
Issued: August 2, 2012
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HUNTER HOLMES MCGUIRE VETERANS
ADMINISTRATION MEDICAL CENTER,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 18-0979
Issued: February 4, 2019

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 April 13, 2018 appellant filed a timely appeal from November 9 and 14, 2017 and
March 28, 2018 merit decisions 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 March 28, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability
commencing June 28, 2016 causally related to her accepted employment injury.
FACTUAL HISTORY
On January 20, 2010 appellant, then a 51-year-old laundry worker, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral upper extremity symptoms while
in the performance of duty. She explained that she transported heavy carts throughout the entire
hospital several times a day. OWCP accepted the claim for bilateral carpal tunnel syndrome.
Appellant underwent an OWCP-authorized right carpal tunnel release on September 9, 2013 and
left carpal tunnel release on October 7, 2013. She returned to work for approximately three weeks
in November 2013.
OWCP paid compensation for temporary total disability as of
December 11, 2013.
In May 2014, Dr. Jawad Bhatti, a Board-certified physiatrist, started prescribing
medication for appellant’s chronic pain. He continued palliative opioid therapy to allow appellant
to continue to carry out daily activities without interruption.
In March 2016, OWCP referred appellant to Dr. James Schwartz, a Board-certified
orthopedic surgeon, for a second opinion examination to determine, in part, whether she was
capable of returning to work.
In a March 19, 2016 report, Dr. Schwartz diagnosed bilateral carpal tunnel syndrome (CTS)
and marked nonphysiologic pain behavior that was not complex regional pain syndrome (CRPS)
Type 2. He indicated that the physical examination was “too bizarre” to relate to CTS or CRPS as
the findings and complaints on examination were not physiologically possible. Dr. Schwartz
opined that appellant’s nonphysiologic pain behavior was not connected to any type of injury or
aggravation of a preexisting condition. He indicated that subjectively appellant could not perform
her regular duties. However, appellant could perform sedentary duty with limited lifting not to
exceed 10 pounds. Dr. Schwartz also completed a work capacity evaluation form (OWCP-5c).
Based upon Dr. Schwartz’s restrictions, on June 7, 2016 the employing establishment
offered appellant a temporary full-time assignment performing secretarial-type duties. The
assignment was sedentary in nature. The physical demands of the position included minor lifting
no more than 10 pounds, intermittent/limited repetitive gripping hand motion with breaks,
standing, and walking. Appellant accepted the temporary-duty assignment on June 14, 2016.
In a June 17, 2016 attending physician’s report (Form CA-20), Dr. Bhatti noted that
appellant had permanent bilateral nerve damage. He reported that she had accepted temporary
duties and that she could return to work in the offered temporary secretarial position. Dr. Bhatti
also indicated that appellant had CRPS Type 2 which he opined was caused by her occupational
injury.
Appellant reported to the temporary modified position on June 27, 2016. She stopped work
the next day.

2

In June 28 and July 22, 2016 attending physician’s reports (Form CA-20), Dr. Bhatti
diagnosed CRPS Type 2 and opined that appellant was incapacitated.
In an August 10, 2016 letter, OWCP advised appellant that the June 7, 2016 job offer was
medically suitable in accordance with the medical limitations provided by Dr. Schwartz and that
the position remained open and available. It advised her of the provisions under 5 U.S.C.
§ 8106(c)(2) regarding abandonment of suitable employment. OWCP also advised appellant that,
if she stopped work because of a worsening in her injury-related condition, then additional factual
and medical evidence was needed to establish a recurrence of disability. It afforded appellant 30
days to submit the additional information.
On August 17, 2016 appellant filed a Form CA-7 claiming disability compensation for the
period June 14 to August 12, 2016.
In an August 18, 2016 letter, appellant indicated that she had seen Dr. Bhatti once a month
since March 9, 2014 and that she had been taking oxycodone twice a day since that time. She
noted that her carpal tunnel releases did not improve her condition and that her hands were the
same as they had been before the surgery. Appellant asserted that she did not abandon her job.
She indicated that, when she saw Dr. Bhatti on June 28, 2016, he advised her to apply for medical
disability due to bilateral nerve damage, which she did on July 13, 2016.
On August 19, 2016 OWCP received Dr. Bhatti’s June 28, 2016 progress report. Dr. Bhatti
diagnosed carpal tunnel syndrome, median neuropathy, and reflex sympathetic dystrophy of the
upper limb. He continued to prescribe oxycodone. In his June 28, 2016 report, Dr. Bhatti noted
that appellant came to his office due to worsening pain in her wrists and arms after she went back
to work on June 27, 2016. He noted that appellant was unable to fully work because of her
medications. Dr. Bhatti opined that appellant was unable to work due to severe pain in all her
joints and chronic pain in her wrists and arms which caused chronic fatigue, decreased motion,
swelling, muscle spasms, sweating and numbness. July 22 and August 22, 2016 progress reports
and CA-20 attending physician’s reports were also received from Dr. Bhatti, with the CA-20
reports noting a diagnosis of CRPS Type 2 and that appellant was incapacitated.
In an August 22, 2016 letter, OWCP advised appellant that the temporary light-duty
assignment appropriately accommodated her current work restrictions as provided by
Dr. Schwartz. It notified her that under the provisions of 20 C.F.R. § 10.500(a) she would not be
entitled to compensation for total wage loss for the duration of the temporary light-duty assignment
if she failed to report for work deemed appropriate by OWCP. OWCP afforded appellant an
additional 30 days to either accept the assignment and report to duty or submit evidence that the
assignment was no longer available or no longer accommodated her medical work restrictions as
provided by Dr. Schwartz.
OWCP thereafter received a July 13, 2016 statement in which B.R., appellant’s supervisor,
noted that a light-duty work order/administrative function was developed for appellant and
required her to answer work order calls and radio supervisors. B.R. indicated that appellant worked
one day, but got very sleepy and unbalanced due to her medication. She indicated that they could
not reasonably accommodate appellant due to the effect of her medications and inability to stay
alert.

3

In an August 23, 2016 letter, the employing establishment noted that the physical demands
of the limited-duty assignment did not require appellant to perform any activities outside of the
restrictions set by Dr. Schwartz. Specifically, the assignment did not involve pushing or pulling.
By decision dated September 28, 2016, OWCP denied entitlement to compensation from
June 28 through August 12, 2016. It found that the medical evidence of record was insufficient to
support that appellant was disabled from the limited-duty position as a result of her accepted workrelated medical condition.3
In an October 4, 2016 telephone message, the employing establishment confirmed that the
job offer was temporary.
On October 8, 2016 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on May 16, 2017. Appellant testified that she had
returned to work on June 27, 2016, but because of her medication for her carpal tunnel syndrome,
her supervisor had allowed her to go to the employee health unit. She indicated that she was
addicted to oxycodone and should not have been allowed to return to work. Appellant confirmed
that, while a coworker had attempted to train her to perform secretarial work, she kept nodding off
because of her medication. She noted that she took oxycodone twice a day to help her pain, but it
made her fall asleep. Appellant also testified that she could not perform the limited-duty position
because she had tried the job for over an hour and a half and her hands were in pain and she had a
lot of tingling. She indicated that she had bilateral nerve damage in both hands.
In May 29 and June 9, 2017 statements, appellant corrected the hearing transcript and
expanded on her testimony. She clarified that on June 28, 2016 Dr. Bhatti had cancelled her return
to the light-duty work assignment due to her incapability to use her hands, her lack of
concentration, focus/alertness, and the heavy sedation due to her medication. Appellant noted that
she had remained for the full eight-hour shift on June 27, 2016. The shift started with training of
the assigned duties, which included answering telephones, documentation filing, and putting paper
files in numerical order for about an hour and a half. Appellant indicated that during this period,
her head was nodding and she was unable to concentrate/focus and that she could not retain the
training information. She noted that she told the trainer and the supervisor, B.R., that the
medication made her sleepy and that B.R. had her go to the employee health unit. Appellant also
indicated that her hands tingled and hurt even though she had taken her morning dose. She noted
that she had difficulty trying to do the assigned work and that her doctor determined that she was
unable to perform the limited-duty job.
On June 30, 2017 OWCP received Dr. Bhatti’s June 26, 2016 prescription note. Dr. Bhatti
diagnosed bilateral carpal tunnel syndrome and indicated that appellant was unable to lift anything
over two pounds. He further advised that she was also not able to sit, stand, and walk longer than
five minutes due to her severe back pain. Appellant was also limited from extreme movement.
Medical reports and CA-20 forms from Dr. Bhatti dated September 23, October 21,
November 21, December 16, 2016 and January 20, February 21, March 21, April 21, May 23,
June 23 and July 20, 2017 were received. Dr. Bhatti continued to prescribe pain medication. In
3

OWCP authorized payment for June 14 through 26, 2016.

4

his October 21 and December 16, 2016 and January 20, February 21, March 21 and May 23, 2017
CA-20 forms, Dr. Bhatt diagnosed CRPS Type 2 which he opined was caused or aggravated by
appellant’s work duties, which caused bilateral nerve damage to the carpal tunnel. In his April 21,
June 23 and July 20, 2017 CA-20 forms, Dr. Bhatti diagnosed CRPS Type 2 which he opined, with
a checkmark “yes” was caused or aggravated by the employment activity.
By decision dated July 27, 2017, an OWCP hearing representative affirmed OWCP’s
September 28, 2016 decision.
OWCP received additional CA-7 forms from appellant claiming disability compensation
from August 15, 2016 and continuing.
On August 9, 2017 appellant requested reconsideration.
In an August 8, 2017 report, Dr. Bhatti indicated that appellant, a patient since March 2014
secondary to a work-related injury of both her hands, was being treated for severe median
neuropathy. He diagnosed bilateral CTS, opioid dependence, bilateral CRPS of upper limbs, and
other lesions of median nerve, right and left upper limb. Dr. Bhatti indicated that appellant still
suffered from severe pain even after the surgery, noting that a nerve conduction study showed
severe neuropathy in bilateral median nerve in both wrists after surgery. He opined that appellant
was unable to return to work because the narcotic medication affected her cognitive functions.
Dr. Bhatti noted that on July 27, 2016 appellant was only able to complete two hours of sedentary
work with restrictions and experienced drowsiness from medication, lack of focus and alertness,
and severe pain in both wrists and arms. He indicated that because of appellant’s CTS, she was
unable to perform the repetitive hand and wrist motions of the modified position involving use of
telephone, e-mail and house data base, retrieve work orders from printer, use of hand held radio,
proof read data and information, and sustain work order spread/reports. Based on physical
examination history, the findings of nerve conduction studies, and appellant’s use of narcotic
medications, Dr. Bhatti opined that appellant was unable to return to work.
CA-20 forms from Dr. Bhatti dated August 23, September 22, 28 and October 23, 2017
were received. He continued to prescribe pain medication. In his CA-20 reports, Dr. Bhatti
diagnosed CRPS Type 2 and opined that appellant was incapacitated.
In a September 7, 2017 report, Dr. Bhatti related that appellant’s bilateral surgical release
did not resolve her symptoms and that July 7, 2015 electromyogram (EMG) study and an
October 21, 2016 nerve conduction study showed severe neuropathy in bilateral median nerve in
both wrists and arms after surgery. He noted that he had upgraded appellant’s diagnosis to CRPS
I of bilateral upper limb as she experienced constant, excessive severe pain with little or no stimuli.
This diagnosis was confirmed in the above mentioned studies as well as blood tests and Sudomotor
Axon Reflex Test. Dr. Bhatti concluded that appellant was unable to perform sedentary tasks due
in part to her inability to use her hands and the side effects from medication which affected her
cognitive functions. He noted that appellant’s disability also limited her ability to perform major
life activities, perform manual tasks and hindered her concentration and thinking proficiencies.
Dr. Bhatti opined that appellant was totally disabled, that she had met maximum medical
improvement and that her prognosis was poor.

5

By decision dated November 9, 2017, OWCP denied modification of its July 27, 2017
decision. It found that appellant failed to establish disability compensation for the claimed period
as Dr. Bhatti had failed to provide medical rationale, supported by objective findings, as to how
appellant’s accepted conditions prevented her from working the light-/limited-duty job offer and
how she was totally disabled from work.
By decision dated November 14, 2017, OWCP denied appellant’s claim for disability
compensation for the period August 15, 2016 and continuing. It found that Dr. Bhatti failed to
provide medical rationale, supported by objective findings, establishing that appellant’s accepted
condition prevented her from working the light-/limited-duty job offer.
OWCP received additional Form CA-7 claims for compensation for the period
November 22, 2017 onwards.
Additional CA-20 forms from Dr. Bhatti dated November 21 and December 21, 2017,
January 22, February 22, and March 22, 2018, and prescription forms were received.
On March 1, 2018 appellant requested reconsideration.
In a February 15, 2018 letter, Dr. Bhatti advised that the intent of his letter was to
substantiate that appellant’s disability was caused by the work-related injury. He noted that
appellant’s bilateral surgical release did not resolve her symptoms and that she was diagnosed with
possible CRPS Type 2 secondary to carpal tunnel surgery. Dr. Bhatti noted that July 7, 2015 EMG
and October 21, 2016 nerve conduction studies showed severe neuropathy in bilateral median
nerve in both wrists and arms, even after surgery, and that her diagnosis was upgraded to CRPS
Type 1 bilateral of the upper limbs. Dr. Bhatti noted that the above diagnostic tests as well as
blood tests and Sudomotor Axon Reflex Tests confirmed the diagnosis. He also noted that
appellant had objective positive findings for pain on palpation, a withdrawal response and
abnormal nerve conduction testing, which revealed severe C8 nerve injury. Dr. Bhatti indicated
the criteria to determine CRPS was based on appellant’s history, physical examination, and
conduction blocks. He opined that appellant was totally disabled and unable to perform sedentary
tasks due in part to her inability to use her hands, as well as the side effects from medication, which
affected her cognitive functions. Furthermore, appellant’s disability limited her ability to perform
major life activities, perform manual tasks, and hindered her concentration and thinking
proficiencies.
By decision dated March 28, 2018, OWCP denied modification. It found that Dr. Bhatti
failed to provide medical rationale, supported by objective findings, of how appellant’s condition
prevented her from working the light-/limited-duty job offer.
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 any disability or specific condition for which

4

See supra note 1.

6

compensation is claimed is causally related to the employment injury.5 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he or she can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantial evidence a recurrence of total
disability and show an inability to perform such light duty. As part of this burden, the employee
must show a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty requirements.7
ANALYSIS
The Board finds that this case is not in posture for decision.
The record supports that appellant was prescribed oxycodone and that the medication had
side effects. Dr. Bhatti has reported that the oxycodone was prescribed for appellant’s bilateral
carpal tunnel syndrome, which developed into chronic regional pain syndrome. If the accepted
conditions of bilateral CTS necessitated the use of such medication, appellant would be entitled to
compensation for the period that the use of that medication was needed and caused disability.
OWCP’s second opinion physician, Dr. Schwartz had however diagnosed carpal tunnel syndrome,
but had opined that appellant’s pain behavior was not CRPS. Dr. Schwartz had indicated that
appellant could not perform her regular job duties, but could perform sedentary work.
The evidence of record reflects that on June 26, 2016 appellant returned to temporary job
assignment which was sedentary in nature and based on medical restrictions established by
Dr. Schwartz. Appellant stopped work on June 27, 2016, after returning to limited-duty for one
day. While she stayed for the full eight-hour shift, the evidence reflects that she worked only an
hour and a half to two hours before being sent to the health unit due to the side effects of her
medication. In a July 13, 2016 statement, B.R., appellant’s supervisor, confirmed that appellant
worked one day, but got very sleepy and unbalanced due to her medication. She indicated that the
employing establishment could not reasonably accommodate appellant due to the effects of her
medications and inability to stay alert.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.8 The nonadversarial policy of proceedings
5

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no
loss of wage-earning capacity).
7

Terry R. Hedman, 38 ECAB 222 (1986).

8

See G.C., Docket No. 18-0842 (issued December 20, 2018); see also Jimmy A. Hammons, 51 ECAB 219 (1999).

7

under FECA is reflected in OWCP’s regulations at section 10.121.9 Once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in a proper manner.10
OWCP did not ask Dr. Schwartz to address as part of his second opinion evaluation
whether appellant’s medication would affect her ability to work. After appellant was sent home
from work on June 27, 2016, he was not asked to clarify whether appellant required oxycodone
for her accepted conditions, and if so whether this medication’s side effects would affect
appellant’s ability to perform the duties of the temporary sedentary position.
On remand, OWCP should seek clarification from Dr. Schwartz as to whether appellant’s
use of the medication oxycodone, led to her inability to perform the limited-duty job and was
necessitated by the accepted conditions. After this and such further development as may be
deemed necessary, OWCP shall issue a de novo opinion.
CONCLUSION
The Board finds that this case is not in posture for a decision.

9

20 C.F.R. § 10.121.

10

See G.C., supra note 8.

8

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2018 and November 14 and 9, 2017
decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded
to OWCP for proceedings consistent with this opinion of the Board.
Issued: February 4, 2019
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Ariel, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-845
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On February 28, 2006 appellant, through her attorney, filed a timely appeal from
January 20, February 7 and 22, 2006 merit decisions of the Office of Workers’ Compensation
Programs finding that she was not entitled to compensation or medical benefits after
September 16, 2005. 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 the Office properly found that appellant was not entitled to
compensation subsequent to September 16, 2005 on the grounds that she had no further
employment-related disability; and (2) whether the Office properly terminated authorization for
medical benefits effective September 16, 2005; and (3) whether appellant has established that she
had continuing employment-related disability subsequent to September 16, 2005.

FACTUAL HISTORY
On September 2, 2004 appellant, then a 48-year-old rural mail carrier, filed a traumatic
injury claim for injury to the muscles of her right arm and shoulder occurring on that date when
the lid of an iron mailbox fell open onto her arm. The Office accepted the claim for a contusion
of the right elbow and shoulder. Appellant worked in a light-duty capacity following her injury
until November 27, 2004, when she stopped work and did not return. She filed a claim for
compensation for intermittent disability from January 21 to October 15, 2005 and for total
disability beginning January 22, 2005.
Appellant received treatment following her injury from Dr. Joseph J. Chun, an osteopath.
In a report dated January 27, 2005, Dr. Chun diagnosed right shoulder pain, myofascial pain,
mild tendinopathy of the biceps tendon, degenerative acromioclavicular changes, cervical sprain,
cervical spondylosis, cervical degenerative disc disease with mild stenosis, bilateral carpal tunnel
syndrome and fibromyalgia. He found that appellant could work light duty but noted that the
employing establishment did not have work available within her restrictions.1
In a report dated January 27, 2005, Kay L. Gendron, Ph.D., a licensed clinical
psychologist, discussed appellant’s employment injury and noted that she was “distressed about
her pain and her limitations.” She diagnosed a pain disorder due to psychological and medical
factors and an adjustment disorder “with mixed emotional features secondary to significant
physical impairment and medical problems.”2
On April 6, 2005 the Office referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In the accompanying statement of accepted
facts, the Office identified the accepted conditions as a contusion of the right arm and elbow.
In a report dated May 16, 2005, Dr. Smith found that appellant had no residuals of her
accepted conditions of a contusion of the right arm and elbow. He asserted that he could not
explain her continued symptoms and stated, “There appears to be symptom magnification with
regard to this case and no objective, clinical or diagnostic findings that would substantiate any
residuals from the work incident that happened on September 2, 2004.” He opined that she could
resume her usual employment without restrictions.
Dr. Chun, in a progress report dated May 25, 2005, discussed appellant’s complaints of
pain in the right shoulder, cervical area and upper extremity following a September 2, 2004 work
injury. He found that she could work in a limited-duty capacity.

1

A December 30, 2004 magnetic resonance imaging (MRI) scan of the cervical spine showed degenerative disc
disease and small disc protrusions. A bone scan performed January 28, 2005 showed minimal degeneration in the
shoulders and sternoclavicular joints. A February 7, 2005 nerve conduction study (NCS) and electromyogram
(EMG) revealed mild bilateral carpal tunnel syndrome (CTS) or cervical radiculopathy. An EMG and NCS dated
May 2, 2005 showed mild chronic and acute radiculopathy at C5-6.
2

Dr. Gendron discussed her treatment of appellant for pain management in progress reports dated February 9,
March 17 and July 18, 2005.

2

On July 27, 2005 the Office referred appellant for a second opinion evaluation with
Dr. Pareshkumar Solguma, a Board-certified psychiatrist, on the issue of whether she sustained
an emotional condition resulting from her September 2, 2004 employment injury. On August 23,
2005 the Office referred appellant to Dr. Beth Ann Cohen, a Board-certified neurologist, for an
impartial medical examination to determine whether she had any residual condition due to her
September 2, 2004 employment injury.
In a report dated September 6, 2005, Dr. Solguma diagnosed an adjustment disorder with
mixed anxiety and depressed mood precipitated by her accepted employment injury. She noted
that appellant had improved on medication and with psychotherapy. Dr. Solguma stated:
“It is my medical opinion that her psychiatric symptoms are not severe enough to
preclude her from working and I believe that she can function full time as far as
her psychiatric symptoms are concerned if she is released by her other specialists.
I recommend that she continue with her medication regime as well as
psychotherapy to improve pain management skills and adjustment to significant
distress secondary to pain as well as improving her coping skills. I recommend
that she receives aggressive pain management as well [as] continued treatment for
her medical conditions.”
In a report dated September 16, 2005, Dr. Cohen reviewed the history of injury and the
medical evidence of record, including the results of diagnostic studies. She listed findings on
physical examination of the shoulder of no atrophy, instability, loss of motion, crepitus or
tenderness to palpation. Dr. Cohen further found no atrophy or decreased power in the muscles
of the arm and shoulder. She diagnosed status post contusion of the right arm and shoulder due
to the September 2, 2004 employment injury. Dr. Cohen stated:
“It is my opinion within a reasonable degree of medical certainty that
[appellant’s] current conditions and complaints cannot be attributed to the work
injury. In support of this, I note the relatively mild nature of the trauma sustained
by [her]. In addition, there are no objective findings on numerous diagnostic
studies that she had to support any of her present complaints or exam[ination]
findings. The MRI [scan] of the cervical spine showed degenerative change. It is
hard to invoke how being hit in the shoulder with a mailbox would lead to a
cervical spine injury. More importantly, the MRI [scan] of her right shoulder also
showed predominately degenerative change. The bone scan showed only
degenerative changes and was negative for findings that would be supportive of
complex regional pain syndrome. Her functional capacity evaluation was 67
percent invalid. Electrodiagnostic studies were either unremarkable but limited or
showed bilateral acute nerve root irritation, a finding that would be unrelated to
the injury of September 2, 2004, and more likely related to her preexisting
condition of fibromyalgia. She has no history or exam[ination] findings to
suggest complex regional pain syndrome, and no definite objective findings
substantiating any residuals from the work injury of September 2, 2004.”
The Office amended the statement of accepted facts to reflect that the accepted condition
was a contusion of the right shoulder and right elbow rather than the right arm and right elbow.

3

The Office wrote to Dr. Smith, Dr. Solguma and Dr. Cohen informing the physicians of the error
and inquiring whether the clarification of the accepted conditions altered their opinions. The
Office also requested that Dr. Cohen provide the date that appellant’s employment-related
disability ceased. Dr. Smith, Dr. Solguma and Dr. Cohen each responded that their opinion was
unaltered.
In a work restriction evaluation dated December 13, 2005, Dr. Cohen indicated that
appellant could work full time in her usual employment without restrictions.
By decision dated January 20, 2006, the Office expanded its acceptance of appellant’s
claim to include an adjustment disorder with mixed anxiety and depressed mood, resolved. The
Office found that appellant was entitled to compensation from January 22 to September 16, 2005
but was not entitled to compensation or medical benefits after September 16, 2005. The Office
noted that it would separately adjudicate the intermittent periods of disability claimed for dates
prior to January 22, 2005.
On January 24, 2006 appellant filed a claim for compensation on account of disability
from January 7 to 28, 2006. In a decision dated February 7, 2006, the Office denied appellant’s
claim on the grounds that her accepted conditions had resolved.
On March 7, 2006 appellant filed a claim requesting compensation from January 21 to
February 3, 2006. She submitted a progress report dated January 23, 2006 from Dr. Chun who
noted that appellant was “status post work[-]related injury on September 2, 2004 with
predominately right shoulder pain and right neck pain and right upper extremity pain and
numbness and paresthesias.” Dr. Chun diagnosed right shoulder pain likely due to rotator cuff
syndrome and glenohumeral abnormality, complex regional pain syndrome, mild tendinopathy of
the biceps tendon with degenerative changes, cervical strain, bilateral CTS, bilateral cervical
radiculopathy at C5-6, fibromyalgia and possible right thoracic outlet syndrome. He opined that
she could work with restrictions. By decision dated February 22, 2006, the Office denied
appellant’s claim for compensation from January 21 to February 3, 2006.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.3 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.4
Section 8123(a) 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

3

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

4

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

4

a third physician who shall make an examination.5 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.6 When there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for contusions of the right elbow and right
shoulder and an adjustment disorder with mixed anxiety and depression due to an injury on
September 2, 2004. Appellant worked limited duty following her employment injury until
November 27, 2004, when she stopped work and did not return. In a decision dated January 20,
2006, the Office found that she was entitled to compensation for total disability from January 22
to September 16, 2005.8 The Office denied compensation after September 16, 2005 on the
grounds that the weight of the evidence showed that appelloant had no further employmentrelated disability after that date.
The Office properly determined that a conflict in medical opinion existed between
Dr. Chun, appellant’s attending physician, and Dr. Smith, an Office referral physician, on the
issue of whether she had any residual condition due to her September 2, 2004 work injury. The
Office referred appellant to Dr. Cohen for an impartial medical examination to resolve the
conflict in opinion.
Where there exists a conflict in medical opinion and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, is entitled to special
weight.9 The Board finds that the opinion of Dr. Cohen, a Board-certified neurologist selected to
resolve the conflict in opinion, is based on a proper factual and medical history, is well
rationalized and supports that appellant’s disability due to her employment injury ceased by
September 16, 2005. In a report dated September 16, 2005, Dr. Cohen accurately summarized
the relevant medical evidence, provided detailed findings on physical examination and reached
conclusions about appellant’s condition which comported with her findings.10 She diagnosed
5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

7

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

8

The Office noted that it would separately adjudicate the issue of appellant’s entitlement to compensation for
periods prior to January 21, 2005.
9

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

10

See Manuel Gill, 52 ECAB 282 (2001).

5

status post contusion of the right arm and shoulder causally related to the September 2, 2004
employment injury. Dr. Cohen found that appellant’s current condition was unrelated to the
employment injury. She provided rationale for her opinion by explaining that the nature of the
trauma and the findings on diagnostic studies did not support an ongoing condition due to her
work injury. Dr. Cohen noted that an MRI scan of the cervical spine revealed degenerative
changes but found that it was “hard to invoke how being hit in the shoulder with a mailbox
would lead to a cervical spine injury.” She also indicated that a right shoulder MRI scan and
bone scan showed degenerative changes. Dr. Cohen interpreted electrodiagnostic studies as
either not remarkable or showing acute nerve root irritation on both sides unrelated to the
September 2, 2004 employment injury. She concluded that appellant had “no objective findings
substantiating any residuals from the work injury of September 2, 2004.” In a work restriction
evaluation dated December 13, 2005, Dr. Cohen opined that appellant could perform her regular
employment without restrictions. She also clarified that her opinion was unchanged when the
Office corrected its statement of accepted facts to reflect that the accepted conditions were right
shoulder and right elbow contusions. As Dr. Cohen’s report is detailed, well rationalized and
based on a proper factual background, her opinion is entitled to special weight accord an
impartial medical specialist and is sufficient to show that appellant had no employment-related
disability after September 16, 2005, the date of her report finding no objective evidence of the
accepted conditions.11
The Office further found that appellant had no disability due to her accepted condition of
an adjustment disorder with mixed anxiety and depression. In a report dated January 27, 2005,
Dr. Gendron diagnosed a pain disorder and adjustment disorder with mixed emotional features.
She did not address disability. The Office referred appellant to Dr. Solguma for an opinion on
whether she sustained a psychiatric condition due to her September 2, 2004 employment injury
and, if so, the extent of any disability. The Board finds that Dr. Solguma’s opinion has
reliability, probative value and convincing quality with respect to the conclusions reached
regarding whether appellant had any psychiatric disability. In a report dated September 6, 2005,
Dr. Solguma thoroughly reviewed the relevant medical evidence and provided findings on
physical examination. She diagnosed an adjustment disorder with mixed anxiety and a depressed
mood which she attributed to appellant’s accepted employment injury. Dr. Solguma opined that
appellant could perform her regular employment from a psychiatric standpoint, providing as a
rationale her lack of severe symptoms and her improvement with medication and counseling.
The Board finds that Dr. Solguma’s opinion represents the weight of the evidence and
establishes that appellant had no impairment from her accepted condition of adjustment disorder
with anxiety and depression after September 16, 2005.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.12 To terminate authorization for medical treatment, the

11

See Barbara J. Warren, 51 ECAB 413 (2000).

12

Pamela K. Guesford, 53 ECAB 727 (2002).

6

Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.13
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits for the
accepted conditions of a contusion of the right shoulder and right elbow through the opinion of
Dr. Cohen, the impartial medical examiner, who found that appellant had no residuals of her
accepted employment injury and that her current complaints were not work related. Dr. Cohen
provided rationale for her opinion by explaining that the findings on diagnostic studies did not
support ongoing problems from her employment injury. As the impartial medical specialist, her
opinion is entitled to special weight and establishes that appellant requires no further treatment
for her accepted conditions of right elbow and shoulder contusions.
The Board finds, however, that the Office improperly terminated authorization for the
accepted condition of an adjustment disorder with mixed anxiety and depressed mood. In a
report dated September 6, 2005, Dr. Solguma, the Office referral physician, diagnosed an
adjustment disorder with anxiety and a depressed mood. She found that appellant could perform
her usual employment but also recommended continued medical treatment for her psychiatric
condition, including medication and psychotherapy. In order to terminate authorization for
medical treatment, the Office must establish that appellant no longer has residuals of an
employment-related condition which requires further medical treatment.14 Dr. Solguma’s
opinion is insufficient to show that appellant no longer has residuals of her adjustment disorder
but instead suggests that she requires further medical treatment. The Office thus improperly
terminated authorization for medical treatment for the accepted condition of an adjustment
disorder.
LEGAL PRECEDENT -- ISSUE 3
As the Office met its burden of proof to terminate appellant’s compensation benefits as to
her accepted physical conditions, the burden shifted to her to establish that she had continuing
disability after that date related to her accepted injury.15 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 medical and factual
background, supporting such a causal relationship.16 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.17 Rationalized medical evidence is evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
13

Id.

14

Id.

15

See Manual Gill, supra note 10.

16

Id.

17

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

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 rationalize explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.18 Neither the 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.19
ANALYSIS -- ISSUE 3
Appellant filed claims for compensation on account of disability from January 7 to
February 3, 2006. Given the Board’s finding that the Office properly relied upon the opinions of
Dr. Cohen and Dr. Solguma in finding that she was not entitled to compensation after
September 16, 2005, the burden of proof shifts to appellant to establish that she remains entitled
to compensation after that date.20
In a report dated January 23, 2006, Dr. Chun diagnosed right shoulder pain, complex
regional pain syndrome, mild tendinopathy of the biceps tendon with degenerative changes,
cervical strain, bilateral CTS, bilateral cervical radiculopathy at C5-6, fibromyalgia and possible
right thoracic outlet syndrome. He noted that she was status post a work injury on September 2,
2004 with symptoms of right shoulder, neck and upper extremity pain and numbness. Dr. Chun
opined that appellant could work with restrictions. As he was on one side of the conflict
resolved by Dr. Cohen, his additional report is insufficient to overcome the special weight
accorded Dr. Cohen’s opinion or to create a new conflict.21 Further, Dr. Chun did not
specifically address the cause of appellant’s partial disability and thus his opinion is of
diminished probative value.22 Appellant, consequently, has not met her burden of proof to
establish any continuing employment-related disability.
CONCLUSION
The Board finds that the Office properly determined that appellant was not entitled to
compensation subsequent to September 16, 2005 on the grounds that she had no further
employment-related disability. The Board further finds that the Office properly terminated
authorization for medical benefits for the accepted conditions of a contusion of the right shoulder
and elbow effective September 16, 2005 but improperly terminated authorization for medical
benefits for the accepted condition of an adjustment disorder with mixed anxiety and a depressed
mood. The Board further finds that appellant has not established that she had continuing
employment-related disability subsequent to September 16, 2005.
18

Leslie C. Moore, 52 ECAB 132 (2000).

19

Ernest St. Pierre, 51 ECAB 623 (2000).

20

See Manual Gill, supra note 10.

21

Alice J. Tysinger, 51 ECAB 638 (2000).

22

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

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 22 and 7, 2006 are affirmed. The decision dated
January 20, 2006 is affirmed in part and reversed in part.
Issued: April 5, 2007
Washington, DC
David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9