United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.C., Appellant 

and 

U.S. POSTAL SERVICE, CIRCLE BRANCH 

POST OFFICE, Trenton, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1252 

Issued: March 11, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 7, 2014 appellant, through his attorney, filed a timely appeal from a January 14, 

2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether OWCP met it burden of proof to terminate appellant’s 

compensation benefits effective November 13, 2012 as he had no residuals of the accepted 

bicipital tendinitis; and (2) whether appellant met his burden of proof to establish that he had any 

employment-related disability due to the accepted condition after January 31, 2013, the date he 

retired. 

 1

 5 U.S.C. §§ 8101-8193. 
2

On appeal, counsel asserts that because a new condition was accepted after the 

termination of appellant’s benefits on November 13, 2012, he would be entitled to wage-loss 

compensation and medical benefits, effective that day. 

FACTUAL HISTORY 

On September 13, 2011 appellant, then a 55-year-old window clerk, filed a traumatic 

injury claim alleging that on September 9, 2011 he injured his right shoulder picking up heavy 

mail. The claim was accepted for right rotator cuff sprain and right rotator cuff tear. On 

January 24, 2012 Dr. Scott Miller, a Board-certified orthopedic surgeon, performed a rotator cuff 

repair and resection of the distal clavicle. Appellant stopped work that day and received 

wage-loss compensation. 

Appellant began a work hardening program on May 7, 2012. In a May 21, 2012 report, 

Dr. Miller indicated that appellant was progressing but could not return to work, noting that he 

continued to need physical therapy and work hardening. He projected a return-to-work date of 

August 2012. 

OWCP referred appellant to Dr. Kenneth P. Heist, a Board-certified osteopath 

specializing in orthopedic surgery, for a second opinion evaluation. In a May 23, 2012 report, 

Dr. Heist noted the history of injury and his review of the statement of accepted facts and 

medical record. He provided physical examination findings and diagnosed status postoperative 

arthroscopic repair of right rotator cuff tear. Dr. Heist advised that he agreed with Dr. Miller that 

a return to work of August 2012 was reasonable and at that time appellant would likely be able to 

return to full duty without restrictions. 

Appellant continued work hardening. On June 25, 2012 Dr. Miller reported that 

appellant was only at 50 percent. He indicated that it was not clear if he could return to work on 

August 1, 2012 and could be delayed until September 1, 2012. On August 23, 2012 Dr. Miller 

reported that appellant continued work hardening and was still having constant right shoulder 

pain with tenderness on examination of the anterior shoulder. He advised that, because appellant 

was 15 pounds away from his goal, he should remain off work. On September 12, 2012 

Dr. Miller noted that appellant was making slow progress and again advised that he could not 

work, with a projected return-to-work date of mid-October. 

On September 13, 2012 OWCP again referred appellant to Dr. Heist for a second opinion 

evaluation. In a September 26, 2012 report, Dr. Heist noted his previous examination and report 

and that appellant had work hardening. He indicated that at present appellant reported that he 

still had difficulty lifting heavy objects and reaching above shoulder level. Dr. Heist provided 

physical examination findings, including right shoulder range of motion. He advised that the 

accepted conditions of right rotator cuff tear and sprain of the right shoulder had resolved 

following the January 24, 2012 surgery and concluded that appellant could return to full-time 

work as a window clerk with no restrictions. On October 1, 2012 Jessica Coe, a physical 

therapist, who conducted work hardening, indicated that appellant attended 63 visits and had 

achieved lifting capability within the medium-heavy level needed to return to work. On a duty 

status report dated October 3, 2012, Dr. Miller indicated that appellant could not return to work. 
3

In an October 10, 2012 letter, OWCP proposed to terminate appellant’s wage-loss and 

medical benefits as the medical evidence, characterized by Dr. Heist’s report, established that 

appellant no longer had residuals or disability due to the accepted conditions. 

In a treatment note dated October 3, 2012, received by OWCP on October 12, 2012, 

Dr. Miller stated that, objectively, appellant’s right shoulder had excellent mobility but that he 

was concerned because appellant had persistent tenderness over the greater tuberosity. He 

recommended a magnetic resonance imaging (MRI) scan study and concluded that appellant did 

not yet meet work requirements. 

Appellant, through counsel, disagreed with the proposed termination, maintaining that, as 

appellant’s window clerk position required lifting up to 70 pounds occasionally and 35 pounds 

continuously, Dr. Heist should be provided the position description for review. In reports dated 

November 5, 2012, Dr. Miller noted that an MRI scan showed residual evidence of tendinitis of 

the supraspinatus and of biceps tendinitis. Examination showed point tenderness over the biceps 

tendon, which he injected, and good mobility of the shoulder. Dr. Miller noted that physical 

therapy had informed him that appellant had plateaued and he basically met work requirements. 

He indicated that appellant’s residual pain was related to persistent biceps tendinitis. Ultrasound 

done that day indicated that the rotator cuff insertion was intact. Dr. Miller advised that 

appellant could return to work on November 10, 2012. Appellant’s only restriction was no 

continuous lifting above the shoulder. 

By decision dated November 13, 2012, OWCP finalized the termination of wage-loss 

compensation and medical benefits. Appellant, through counsel, timely requested a hearing. In 

reports dated November 28, 2012 through January 30, 2013, Dr. Miller noted appellant’s 

complaint of continued pain and advised that he could continue to work. He indicated that the 

residual biceps tendinitis limited appellant’s work activities, and on December 31, 2012 placed a 

lifting restriction of 50 pounds. Dr. Miller recommended additional surgery. 

At the hearing, held on March 25, 2013, appellant testified that he continued to work with 

some difficulty following the September 9, 2011 employment injury until he had surgery in 

January 2012. He returned to work on November 13, 2012 with lifting restrictions for the 

nonaccepted condition of tendinitis, he retired on January 31, 2013, taking a buy-out, and was 

currently working in private employment. Counsel indicated that there was no wage-loss claim 

but, since appellant needed further surgery due to residuals of the employment injury, a 

recurrence claim could be filed in the future. 

In correspondence dated April 8, 2013, the employing establishment confirmed that 

appellant retired effective January 31, 2013 with a special $15,000.00 incentive. On April 29, 

2013 counsel forwarded an April 18, 2013 report in which Dr. Miller described appellant’s care, 

noting that he had continued complaints of pain following the January 2012 surgery. Dr. Miller 

described October 2012 MRI scan study findings and indicated that when appellant was seen on 

November 5, 2012, he could lift 70 pounds, just not over his head, and that he was allowed to 

return to work with a restriction against heavy overhead lifting. He noted that, when he next saw 

appellant on November 28, 2012, it was evident that work activity caused more pain but that 

appellant was able to continue modified duty until he retired. Dr. Miller advised that appellant 

needed additional corrective surgery due to the September 2011 employment injury. 
4

By decision dated June 12, 2013, an OWCP hearing representative found the weight of 

the evidence rested with the opinion of Dr. Heist and affirmed the November 13, 2012 decision 

terminating appellant’s wage-loss and medical benefits. The hearing representative, however, 

remanded the case to OWCP for referral to its medical adviser for review and comment with 

regard to the newly submitted evidence as to whether it supported a diagnosis of consequential 

right biceps tendinitis and the need for additional surgery. 

On July 23, 2013 OWCP asked Dr. Henry J. Magliato, a Board-certified orthopedic 

surgeon and OWCP medical adviser, to review the June 12, 2013 hearing representative 

decision, the Statement of Accepted Facts, and a job description, and to respond to questions 

regarding whether appellant’s right biceps tendinitis was related to the September 9, 2011 

employment injury and, if so, was surgery warranted. In a July 25, 2013 report, Dr. Magliato 

advised that the biceps condition was related to the September 9, 2011 employment injury and 

that the surgery recommended by Dr. Miller was warranted. On August 9, 2013 he indicated that 

the employment injury either aggravated a preexisting bicipital tendinitis or actually caused it 

and advised that it should be accepted as part of the September 9, 2011 employment injury. On 

August 26, 2013 Dr. Magliato indicated that it was more likely that the employment incident of 

September 9, 2011 caused the right biceps condition. 

On October 7, 2013 OWCP accepted right bicipital tendinitis. It also informed Dr. Miller 

that the proposed surgery was authorized. On October 16, 2013 appellant, through counsel, 

requested reconsideration, asserting that the June 12, 2013 decision should be vacated and 

appellant’s wage-loss compensation restored. 

In October 30, 2013 reports, Dr. Miller provided examination findings and diagnosed 

bicipital tenosynovitis. He indicated that appellant could work modified duty with a 10-

to 25-pound lifting, pushing and pulling restriction, and no overhead work. Surgery would be 

scheduled at appellant’s earliest convenience. 

In a January14, 2014 decision, OWCP denied appellant’s claim for resumption of 

wage-loss compensation. It noted that, at the March 25, 2013 hearing, counsel indicated that 

there were no wage-loss claims, and the record did not indicate that appellant filed either a 

recurrence claim or claims for wage-loss compensation. 

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. It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.2 

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.3

 

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

3 Id.
5

ANALYSIS -- ISSUE 1 

OWCP accepted that on September 13, 2011 appellant suffered a right rotator cuff sprain 

and rotator cuff tear. On November 13, 2012 it terminated his wage-loss compensation and 

medical benefits. The Board finds that the weight of the medical opinion is represented by the 

opinion of Dr. Heist, who examined appellant at the request of OWCP and provided an accurate 

and complete factual and medical background of appellant’s condition in his September 26, 2012 

report. 

In a September 26, 2012 report, Dr. Heist indicated that at the present appellant reported 

that he still had difficulty lifting heavy objects and reaching above shoulder level. He provided 

physical examination findings, including right shoulder range of motion. Dr. Heist advised that 

the accepted conditions of right rotator cuff tear and sprain of the right shoulder had resolved 

following the January 24, 2012 surgery and concluded that appellant could return to full-time 

work as a window clerk with no restrictions. 

In reports dated November 5, 2012, Dr. Miller stated that physical therapy had informed 

him that appellant had plateaued and that he basically met work requirements. He noted point 

tenderness over the biceps tendon and good mobility of the shoulder and indicated that 

appellant’s residual pain was related to persistent biceps tendinitis, which he injected. 

Ultrasound done that day indicated that the rotator cuff insertion was intact. Dr. Miller advised 

that appellant could return to work on November 10, 2012 with a restriction of no continuous 

lifting above the shoulder. 

In assessing medical evidence, the weight of such evidence is determined by its 

reliability, its probative value, and its convincing quality. The opportunity for and thoroughness 

of examination, the accuracy and completeness of the physician’s knowledge of the facts and 

medical history, the care of analysis manifested, and the medical rationale expressed in support 

of the physician’s opinion are facts, which determine the weight to be given to each individual 

report.4

 

The Board finds that OWCP properly determined that the weight of the medical opinion 

evidence rested with the opinion of Dr. Heist, who provided a comprehensive report in which he 

outlined examination findings and provided a rationalized explanation for his opinion that 

appellant’s accepted right shoulder conditions had resolved. Moreover, Dr. Miller indicated on 

November 5, 2012 that appellant’s restrictions were due to biceps tendinitis and not to his rotator 

cuff per se. He advised that appellant could return to work, and appellant returned to modified 

duty on November 13, 2012. OWCP therefore met its burden of proof to terminate appellant’s 

compensation benefits on November 13, 2012 due to the resolution of the accepted rotator cuff 

sprain and rotator cuff tear. 

 4 Michael S. Mina, 57 ECAB 379 (2006). 
6

LEGAL PRECEDENT -- ISSUE 2 

As OWCP met its burden of proof to terminate wage-loss compensation on 

November 13, 2012, the burden shifted to appellant to establish any disability causally related to 

the accepted rotator cuff conditions.5 

Under FECA, the term “disability” is defined as incapacity, because of employment 

injury, to earn the wages that the employee was receiving at the time of injury.6

 Disability is 

thus not synonymous with physical impairment which may or may not result in an incapacity to 

earn the wages. An employee who has a physical impairment causally related to a federal 

employment injury but who nonetheless has the capacity to earn wages he or she was receiving 

at the time of injury has no disability as that term is used in FECA.7

 The test of “disability” 

under FECA is whether an employment-related impairment prevents the employee from engaging 

in the kind of work he or she was doing when injured.8

 Whether a particular injury causes an 

employee to be disabled for work and the duration of that disability, are medical issues that must 

be proved by a preponderance of the reliable, probative and substantial medical evidence.9

 

Causal relationship is a medical issue. 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.10 

ANALYSIS -- ISSUE 2 

Following the termination of compensation benefits on November 13, 2012, OWCP 

accepted an additional condition, right bicipital tendinitis. Counsel asserts that appellant’s wageloss compensation be restored effective November 13, 2012. As appellant testified at the 

March 25, 2013 hearing, however, he returned to modified duty on November 13, 2012 and 

continued working until he retired on January 31, 2013. He further testified at the 

 5 See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003). 

6 See Prince E. Wallace, 52 ECAB 357 (2001). 

7 Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995). 

8 Corlisia Sims, 46 ECAB 963 (1995). 

9 Tammy L. Medley, 55 ECAB 182 (2003). 

10 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 
7

March 25, 2013 hearing that he was then working. The record also indicates that appellant 

retired with a $15,000.00 special retirement incentive.11 

Voluntary retirement does not, by itself, raise an issue of disability.12 In order for 

appellant to be entitled to any disability compensation, he must establish that he is disabled from 

the modified duties he was performing at the time he retired.13 He testified at the hearing that 

when he retired on January 31, 2013, he was working modified duty with lifting restrictions. On 

April 18, 2013 Dr. Miller indicated that when appellant was seen on November 5, 2012, he could 

lift 70 pounds, just not over his head, and advised that he could return to work with a restriction 

against heavy overhead lifting. While he advised that appellant had increased pain when seen on 

November 28, 2012, he noted that appellant continued to work modified duty until he retired. 

Thus, as the record does not establish that appellant was disabled from his modified duties when 

he retired, he would not be entitled to wage-loss compensation after that date.14

Appellant, however, would be entitled to medical benefits for the bicipital tendinitis 

condition, accepted by OWCP on October 7, 2013. Section 8103 of FECA provides that the 

United States shall furnish to an employee who is injured while in the performance of duty, the 

services, appliances and supplies prescribed or recommended by a qualified physician, which 

OWCP considers likely to cure, give relief, reduce the degree of the period of disability or aid in 

lessening the amount of monthly compensation.15 Dr. Miller consistently advised that appellant 

needed surgery for this condition, and Dr. Magliato, an OWCP medical adviser, agreed on 

July 25, 2013 that the surgery recommended by Dr. Miller was warranted. OWCP authorized the 

requested surgery.16 

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. 

 11 Employing establishments may offer separation pay or buyouts to encourage employees to leave federal 

employment voluntarily. OWCP procedures provide that compensation for temporary total disability may not be 

paid for the period covered by separation pay. Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, 

Chapter 2.1000.17.c(1) (June 2009). Some separation payments are based on a specific number of weeks of pay 

while others are capped at a specified amount of money. In order to apply uniform standards to all claimants, 

however, offsets for both types of payments should be computed in the same manner regardless of the way an 

employing establishment has offered separation pay. See Lynne M. Schaack, Docket No. 05-695 (issued 

November 9, 2005). Whether separation pay is based on weeks of pay or a specified dollar amount, compensation 

should be suspended for the number of weeks of salary that the separation pay represents. L.J., Docket No. 10-510 

(issued October 1, 2010). 

12 J.H., Docket No. 14-540 (issued July 1, 2014). 

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

14 The record does not indicate that he filed either a recurrence claim or a Form CA-7 claim for compensation 

following his retirement. 

15 5 U.S.C. § 8103; W.M., 59 ECAB 132 (2007). 

16 OWCP procedures provide that, if surgery is authorized, the claims examiner should request a surgery date and 

expected period of disability. Federal (FECA) Procedure Manual, Part 2 -- Claims, Disability Management, Chapter 

2.600.7(d)(2) (September 2010). 
8

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s compensation benefits on 

November 13, 2012 and that he is not entitled to wage-loss compensation after he retired on 

January 21, 2013. Appellant, however, is entitled to medical benefits for the condition bicipital 

tendinitis, accepted on October 7, 2013. 

ORDER 

IT IS HEREBY ORDERED THAT the January 14, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed as modified. 

Issued: March 11, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board