United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 13-2066 

Issued: March 11, 2014 

Appearances: Case Submitted on the Record

Lonnie Boylan, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On September 9, 2013 appellant, through his representative, filed a timely appeal from a 

May 20, 2013 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 its burden of proof to terminate compensation for 

wage-loss and medical benefits effective January 14, 2013 with respect to the accepted left 

shoulder condition; and (2) whether appellant has established any additional conditions causally 

related to the December 20, 2010 employment injury. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 5, 2011 appellant, then a 50-year-old carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on December 20, 2010 she sustained injuries to her left shoulder and 

arm while in the performance of duty. She indicated on the claim form that she was lifting 

buckets onto the freight elevator to deliver mail. In a note dated January 4, 2011, Dr. Mary 

Mattheos, an internist, diagnosed a severe sprain/strain and stated that appellant could not work 

for two weeks. On February 7, 2011 OWCP accepted the claim for closed dislocation of the left 

shoulder. It paid wage-loss compensation commencing March 12, 2011. 

In a report dated March 23, 2011, Dr. Anthony Cappellino, a Board-certified orthopedic 

surgeon, diagnosed left shoulder strain and cervical derangement. He stated that he believed 

appellant’s symptoms were related to cervical pathology, and the initial shoulder injury 

“incorporated the neck.” 

By report dated April 20, 2011, Dr. Amit Patel, a pain management specialist, provided a 

history and results on examination. He diagnosed myofascial pain syndrome, cervical radiculitis 

and cervical spinal stenosis. In a report dated May 18, 2011, Dr. Patel also diagnosed facet 

arthropathy. By report dated June 15, 2011, Dr. Cappellino diagnosed cervical derangement and 

radiculopathy, as well as left shoulder derangement. He indicated that appellant could work parttime light duty with limited casing and overhead lifting. 

OWCP referred appellant, along with medical records and a statement of accepted facts 

(SOAF) for a second opinion examination by Dr. Leon Sultan, a Board-certified orthopedic 

surgeon. In a report dated August 4, 2011, Dr. Sultan provided a history and results on 

examination. He noted in his history that appellant had a prior work-related right shoulder injury 

that resulted in an ulnar nerve transposition surgery. Dr. Sultan diagnosed a musculoskeletal left 

shoulder strain. He stated that the objective examination findings “reveals that her accepted 

conditions have resolved, leaving her with no residual permanency and from a clinical point of 

view, she has reached a point of maximum medical improvement from the original occurrence of 

[December 20, 2010].” With respect to any additional employment-related injuries, Dr. Sultan 

stated that the evidence “does not indicate that the claimant suffered any other or additional 

injuries due to the claimed factors of employment.” He noted that diagnostic studies had 

indicated degenerative changes from C3-4 to C6-7 with no significant cord compression, along 

with moderate-to-severe left neural foraminal narrowing at C6-7 and neural foraminal narrowing 

bilaterally at C5-6 and on the left at C4-5 unchanged from the prior examination of 

January 22, 2007. Dr. Sultan concluded that “these reported findings are preexisting multilevel 

degenerative changes that are not reflected in today’s examination and are unrelated to the 

original occurrence of [December 20, 2010].” 

In a report dated August 9, 2011, Dr. Patel indicated that appellant’s left shoulder motion 

was mildly limited by pain. He diagnosed myofascial pain syndrome, cervical spondylosis and 

stenosis and shoulder pain. Dr. Patel indicated that appellant could work with a 10-pound lifting 

restriction. 

Appellant remained off work and continued to receive treatment from Dr. Patel. In a 

report dated September 18, 2012, Dr. Daniel Kohane, a pain medicine specialist, indicated that 
3

appellant continued to have neck pain. He indicated that the primary diagnosis was cervical 

radiculitis, with additional diagnoses of cervical spondylosis and stenosis, myofascial pain 

syndrome and shoulder pain. 

OWCP again referred appellant to Dr. Sultan for a supplemental second opinion 

examination. In a report dated November 13, 2012, Dr. Sultan provided a history and results on 

examination. He reiterated his statements provided in the August 4, 2011 report with respect to 

appellant’s condition and its relationship to her employment. 

By letter dated December 10, 2012, OWCP advised appellant that it proposed to 

terminate compensation for wage-loss and medical benefits. It stated that the weight of the 

evidence was represented by Dr. Sultan, and appellant was provided 30 days to submit evidence 

or argument. 

In a decision dated January 14, 2013, OWCP terminated compensation for wage-loss and 

medical benefits. Appellant requested a review of the written record by an OWCP hearing 

representative, and submitted a January 29, 2013 report from Dr. Cappellino who provided a 

history and results on examination. Dr. Cappellino stated that “the injury [appellant] sustained 

was a traction-type injury to the shoulder and neck. This resulted in cervical radicular 

symptoms. There was a mild strain of the rotator cuff; however, most of her pain and discomfort 

from the onset was more related to the paresthesia, numbness, and tingling which partially 

resolved; however, there is still persistent radicular-type phenomena and cervical pathology. 

There may be spondylosis or degenerative changes in the spine; however, the subsequent 

pathology was due to the traction injury sustained to the cervical spine and shoulder.” 

Dr. Cappellino indicated that appellant could work with restrictions that included no more than 

10 pounds lifting and no overhead activity. 

By decision dated May 20, 2013, the hearing representative affirmed the termination of 

compensation for wage-loss and medical benefits. The hearing representative found the weight 

of the medical evidence rested with Dr. Sultan, and appellant’s physicians did not provide 

rationalized opinions on causal relationship.2

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation. After it has been determined that an employee has disability causally related to 

his or her employment, OWCP may not terminate compensation without establishing that the 

disability had ceased or that it was no longer related to the employment.3

 The right to medical 

benefits for an accepted condition is not limited to the period of entitlement to compensation for 

disability. To terminate authorization for medical treatment, OWCP must establish that appellant 

 2

 The hearing representative did not specifically discuss Dr. Cappellino’s January 29, 2013 report. 

3 Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503. 
4

no longer has residuals of an employment-related condition which require further medical 

treatment.4

ANALYSIS -- ISSUE 1 

In the present case, the only accepted condition was for a left shoulder dislocation. With 

respect to the accepted condition, it is OWCP’s burden of proof to terminate compensation for 

wage-loss and medical benefits. The second opinion physician, Dr. Sultan, opined in his 

August 4, 2011 and November 13, 2012 reports that the accepted left shoulder condition had 

resolved. He provided results on left shoulder examination and a medical history. Dr. Sultan 

indicated that his opinion was based on the objective evidence from the examination. 

The attending physicians in this case did not provide a rationalized medical opinion that 

appellant continued to have an employment-related left shoulder condition as of 

January 14, 2013. Drs. Patel and Kohane referred briefly to shoulder pain but did not provide an 

opinion that appellant continued to have a diagnosed employment-related left shoulder condition. 

The primary diagnosis regarding appellant’s continuing treatment was related to a cervical 

condition and a myofascial pain syndrome. Dr. Cappellino also indicated in his January 29, 2013 

report that appellant’s continuing condition was related to “radicular-type phenomena and 

cervical pathology.” 

The issue of a cervical or other condition as employment related will be discussed below. 

As to the termination of compensation for the accepted left shoulder condition, the weight of the 

evidence rests with the second opinion physician. Dr. Sultan provided a rationalized opinion that 

appellant’s accepted left shoulder condition had resolved.5

On appeal, appellant’s representative argues that the SOAF was inadequate as it did not 

include information regarding another claim accepted for right lateral epicondylitis. The issue in 

this case was related to the left shoulder, and the July 18, 2011 SOAF provided an appropriate 

background for the December 20, 2012 claim. In addition, the Board notes that Dr. Sultan 

referred to a right shoulder injury and surgery in his medical history. He was provided an 

adequate background to provide an opinion on the issues presented in this case. The Board 

reiterates that the evidence was sufficient to support a termination of compensation with respect 

to the accepted left shoulder injury. 

LEGAL PRECEDENT -- ISSUE 2 

An employee seeking benefits under FECA 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 timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty as alleged, 

 4 Furman G. Peake, 41 ECAB 361 (1990). 

5

 Rationalized medical opinion evidence is medical evidence that is based on a complete factual and medical 

background, of reasonable medical certainty and supported by medical rationale explaining the opinion. 

Jennifer Atkerson, 55 ECAB 317, 319 (2004). 
5

and that any disability or specific condition for which compensation is claimed is causally related 

to the employment injury.6

Section 8123(a) of FECA provides that when there is a disagreement between the 

physician making the examination for the United States and the physician of the employee, a 

third physician shall be appointed to make an examination to resolve the conflict.7

 When there 

are opposing medical reports of virtually equal weight and rationale, the case must be referred to 

a referee physician, pursuant to section 8123(a), to resolve the conflict in the medical evidence.8

 

ANALYSIS -- ISSUE 2 

The record indicates that following the December 20, 2010 injury appellant reported 

cervical radicular symptoms and was treated for cervical conditions. Dr. Cappellino opined in 

his January 29, 2013 report that appellant sustained a traction-type injury that caused a mild 

strain but also resulted in a cervical injury with radiculopathy that produced numbness and pain 

in the left arm. On the other hand, Dr. Sultan found that no additional conditions were 

employment related, finding that the cervical symptoms resulted from degenerative changes that 

preexisted the December 20, 2010 injury. 

The Board finds that a conflict exists in the medical evidence with respect to whether 

appellant has a diagnosed cervical condition causally related to the December 20, 2010 

employment injury. The case will be remanded to OWCP to resolve the conflict with respect to 

whether appellant sustained additional employment-related injuries. After such further 

development as OWCP deems necessary, it should issue an appropriate decision. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate compensation for wageloss and medical benefits with respect to the accepted left shoulder condition. The Board further 

finds that the case must be remanded for further development with respect to whether appellant 

sustained additional employment-related conditions. 

 6 Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 

7 Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a). 

8 William C. Bush, 40 ECAB 1064 (1989). 
6

ORDER 

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

Compensation Programs dated May 20, 2013 is affirmed with respect to termination of 

compensation. The decision is set aside with respect to additional medical conditions and the 

case remanded to resolve a conflict in the evidence. 

Issued: March 11, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board