United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.J., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, TINKER 

AIR FORCE BASE, OK, Employer 

__________________________________________ 

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Docket No. 14-1365 

Issued: November 17, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 29, 2014 appellant, through counsel, filed a timely appeal from the March 11, 

2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating his 

compensation benefits. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits for left lateral epicondylitis effective March 11, 2014. 

On appeal, appellant’s attorney contends that OWCP’s decision is contrary to law and 

fact. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant’s counsel did not file an appeal from the April 23, 2014 OWCP decision denying an oral hearing. As 

such, the Board will not review it on this appeal. See 20 C.F.R. § 501.3. 
2

FACTUAL HISTORY 

On April 8, 2010 appellant, then a 49-year-old aircraft sheet metal mechanic, filed an 

occupational disease claim alleging tennis elbow is his left arm as a result of repetitive motions 

during his federal employment. The motions included bending, stooping, lifting up to 50 

pounds, pulling, holding parts for long periods, drilling, sanding, riveting, bucking rivets, 

painting of panels with primer, cutting and squeezing. Appellant also noted that on March 24 

and 25, 2010 he installed approximately 100 airlock fasteners in gap cover panels. OWCP 

accepted his claim for left lateral epicondylitis. 

On February 5, 2013 OWCP referred appellant to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion. In a February 19, 2013 report, Dr. Swartz 

stated that appellant suffered from chronic lateral epicondylitis in his left elbow, which was 

accepted as related to his federal employment. He found that there were no residuals of the 

accepted condition based on objective findings. Dr. Swartz further opined that appellant 

required no further medical treatment referable to the claim. 

On May 2, 2013 OWCP approved appellant’s request to change physicians to 

Dr. Randall K. Schaefer, a Board-certified orthopedic surgeon. In a May 29, 2013 report, 

Dr. Schaefer diagnosed chronic left lateral elbow tendinitis and obesity. He injected appellant’s 

lateral epicondyle with cortisone and lidocaine which, he noted, gave appellant partial pain relief. 

Dr. Schaefer recommended work restrictions of no gripping or lifting more than 10 pounds. In a 

June 7, 2013 report, he noted that appellant underwent a magnetic resonance imaging (MRI) scan 

on June 3, 2013. It demonstrated common extensor tendinosis consistent with his diagnosis. 

Dr. Schaefer found that appellant continued to have lateral elbow pain aggravated by gripping. 

He recommended a work restriction of no gripping or lifting more than 10 pounds. In a June 10, 

2013 report, Dr. Schaeffer indicated that he discussed with appellant his treatment options, 

including a left elbow fasciectomy and ostectomy. 

In order to resolve the conflict in opinion between Dr. Swartz and Dr. Schaefer as to 

whether appellant had residuals of his employment injury, OWCP referred appellant to 

Dr. Howard Shortley, a Board-certified orthopedic surgeon, for an impartial medical 

examination. 

In a December 10, 2013 report, Dr. Shortley reviewed appellant’s history of injury, 

medical treatment and findings on physical examination. He determined that appellant no longer 

had left lateral epicondylitis. Dr. Shortley noted that appellant had no complaints referable to the 

lateral side of his left elbow, no tenderness present on the lateral side of his left elbow and 

forceful gripping did not produce pain in the left elbow. Appellant had developed some medial 

epicondylitis from work around the house or of unknown cause, but that it was not employment 

related. Dr. Shortley concurred with Dr. Swartz that appellant no longer had objective residuals 

from his employment injury and required no further medical treatment. Although appellant’s 

chronic left lateral epicondylitis had cleared, he continued to have shoulder pain that was not 

easily explained. Dr. Shortley noted that appellant’s MRI scan was negative, that the physical 

examination did show positive impingement tests in his left shoulder. The MRI scan did not 

show any sign of impingement. He noted that some diabetic patients developed pain and 

stiffness in their shoulders and that it was possible that this was related to appellant’s pain. 
3

Dr. Shortley also noted that appellant appeared very prone to tendinitis. He stated that job 

limitations would be appropriate but not relate to any employment injury and that, based on 

objective findings, appellant did not have any residuals of the accepted injury. Dr. Shortley 

noted left lateral epicondylitis did not cause any pain in the lateral side of the elbow on 

examination and that the tests for lateral epicondylitis were negative. It appeared that appellant 

was never totally disabled due to his employment-related condition, but did have periods when 

he was partially disabled due to his lateral epicondylitis and shoulder pain which had lasted for 

two to three years. 

On January 23, 2014 OWCP issued a notice proposing to terminate appellant’s medical 

benefits and wage-loss compensation. It found that the report of Dr. Shortley found that the 

residuals of his accepted employment-related condition had ceased. 

On February 11, 2014 appellant disagreed with the proposal to terminate his benefits. He 

argued that the focus appeared to be on his elbow, but that his main problem involved his left 

shoulder, which involved another claim. 

In a March 11, 2014 decision, OWCP terminated appellant’s medical benefits and wageloss compensation effective that date. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of employee’s benefits. It may not terminate compensation without 

establishing that the disability ceased or that is was no longer related to the employment.3 

OWCP’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

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement to compensation for disability.5

 To terminate authorization for medical treatment, 

OWCP must establish that appellant no longer has residuals of an employment-related condition 

which require further medical treatment.6

In situations where 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

 3 See also J.P., Docket No. 13-1049 (issued August 16, 2013); Mohamed Yunis, 42 ECAB 325, 334 (1991). 

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

5 See T.P., 58 ECAB 524 (2007). 

6 See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

7 Manuel Gill, 52 ECAB 282 (2001). 
4

ANALYSIS 

OWCP accepted appellant’s claim for left lateral epicondylitis. It terminated his 

compensation and medical benefits effective March 11, 2014 as he no longer had any residuals 

of his accepted employment-related conditions. 

Appellant’s treating physician, Dr. Schaefer, advised that he still had residuals of left 

lateral epicondylitis. The second opinion physician, Dr. Swartz, found that there were no 

residuals of this condition that were related to appellant’s federal employment. In order to 

resolve this conflict between the medical opinion of appellant’s treating physician and the second 

opinion physician, OWCP properly referred him to Dr. Shortley for an impartial medical 

examination.8

 Dr. Shortley opined that appellant’s chronic left lateral epicondylitis was no 

longer in existence. In support of this conclusion, he provided a well-rationalized medical 

opinion supported by an evaluation of appellant’s history of injury, medical history and physical 

examination. Dr. Shortley did note that appellant had chronic left shoulder pain and medial 

epicondylitis of the left elbow, but determined that these conditions were unrelated to any work 

injury. In support of his conclusion that appellant no longer suffered from left lateral 

epicondylitis, he noted that appellant had no complaints referable to the lateral side of his left 

elbow or tenderness present on the lateral side of his left elbow. Dr. Shortley noted that forceful 

gripping did not reproduce any pain in the left elbow. He also noted that diagnostic tests for 

lateral epicondylitis were negative. 

The Board finds that Dr. Shortley’s report represents the special weight of the medical 

evidence. OWCP properly relied upon his report to terminate appellant’s medical and 

compensation benefits. The Board finds that Dr. Shortley had a full and accurate knowledge of 

the relevant facts and evaluated the course of appellant’s condition. He concluded that appellant 

had no residuals from the accepted condition of employment-related left lateral epicondylitis. 

OWCP properly gave special weight to the opinion of the impartial medical examiner and 

terminated appellant’s medical and compensation benefits due to the fact that the employmentrelated condition of left lateral epicondylitis had ceased.9

 

Appellant’s counsel contends on appeal that OWCP’s decision was contrary to fact and 

law. For the reasons noted, the Board finds that OWCP met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits effective March 11, 2014. 

Appellant may submit evidence or argument with a written request for reconsideration 

within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 

through 10.607. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate appellant’s 

compensation and medical benefits for left lateral epicondylitis effective March 11, 2014. 

 8 See S.N., Docket No. 08-1869 (issued May 5, 2009). 

9 See J.T., Docket No. 14-72 (issued July 17, 2014). 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated March 11, 2014 is affirmed. 

Issued: November 17, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board