United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.E., Appellant 

and 

U.S. POSTAL SERVICE, PHILADELPHIA 

BULK MAIL CENTER, Philadelphia, PA, 

Employer 

__________________________________________ 

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Docket No. 14-586 

Issued: September 2, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 23, 2014 appellant, through his attorney, filed a timely appeal from an 

October 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) 

denying his claim for disability compensation and a November 4, 2013 merit decision 

terminating his compensation. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether OWCP properly terminated appellant’s authorization for 

medical benefits effective March 19, 2013; and (2) whether appellant sustained intermittent 

periods of disability from September 25, 2010 to April 6, 2012 due to his accepted work injury. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated March 20, 2012, the 

Board set aside an April 13, 2011 OWCP decision denying appellant’s traumatic injury claim.2

 

The Board found that he established the occurrence of the August 10, 2010 work incident and 

remanded the case for further development of the medical evidence to determine whether he had 

sustained an injury as a result of the accepted event. The facts and circumstances as set forth in 

the prior decision are hereby incorporated by reference. 

In a report dated October 8, 2010, Dr. Charles M. Bolno, an attending orthopedic 

surgeon, discussed appellant’s August 10, 2010 employment incident and noted that he had 

received treatment on that date at the emergency room. He opined that appellant had not 

recovered from a prior neck injury when he returned to work on August 10, 2010. Dr. Bolno 

diagnosed an acute glenoid tear of the left shoulder, subacromial impingement of both shoulders, 

left shoulder post-traumatic arthritis, acute traumatic cervical radiculopathy, acute traumatic 

cervical strain and sprain and bilateral acute traumatic carpal tunnel syndrome. He listed work 

restrictions.3

 

In a report dated February 3, 2011, Dr. Bolno stated: 

“The extensive nature of the work that [appellant] was performing at the time o[f] 

his injury and the excessive amount of weight that he was lifting and pushing 

related to the containers of mail not only aggravated a preexisting condition that 

result[ed] in a fusion of his cervical spine but caused a new cervical radiculopathy 

in his neck with an acute labral tear in his shoulder. There is no doubt that the 

repetitive nature of his work resulted in his carpal tunnel syndrome and ulnar 

nerve compression. There is no doubt that [appellant’s] injuries prevent him from 

performing his duties at this time.... There is no doubt that the numbness and 

parasthesias in the left arm are a direct result of the work-related injury on 

August 10, 2010 and the resulting weakness and severe pain in the left shoulder is 

related to the heavy lifting and pushing that he was doing on August 10, 2010 

resulting in a tear of the glenoid labrum. These injuries prevent [appellant] from 

performing his duties now as they have since the initial injury.” 

In a report dated August 2, 2012, Dr. Bolno asserted that appellant was totally disabled as 

a result of injuries to his bilateral shoulders and cervical spine at work on August 10, 2010. He 

diagnosed bilateral rotator cuff injuries and acute cervical radiculopathy as a result of the 

August 10, 2010 employment incident. 

 

 2

 Docket No. 11-1657 (issued March 20, 2012). On August 11, 2010 appellant, then a 45-year-old mail handler, 

filed a traumatic injury claim alleging that on August 10, 2010 he felt tingling and pain in his shoulder and neck 

when he pulled a container off a truck. 

3

 Dr. Bolno submitted a similar report on October 25, 2010. 
3

On August 28, 2012 OWCP referred appellant to Dr. Robert Allen Smith, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated 

September 14, 2012, Dr. Smith diagnosed a soft tissue neck strain due to the August 10, 2010 

work incident. He discussed appellant’s history of a prior cervical fusion at C6-7 in 2006 and 

surgery on his left shoulder in 2002. Dr. Smith found no evidence of an aggravation of the 

preexisting neck arthritis and stated, “I would conclude that his soft tissue injury from the work 

incident of August 10, 2010 has resolved without residual.” He attributed appellant’s current 

symptoms to the prior neck surgery. 

Based on Dr. Smith’s report, on September 24, 2012, OWCP accepted appellant’s claim 

for resolved neck sprain. 

On October 18, 2012 appellant filed claims for compensation for intermittent dates 

beginning September 25, 2010. 

In a report dated October 25, 2012, Dr. Bolno discussed appellant’s history of 

experiencing pain on August 10, 2010 after pushing mail containers out of a trailer. He 

diagnosed acute traumatic cervical sprain and radiculopathy, acute traumatic bilateral carpal 

tunnel syndrome, an acute traumatic glenoid tear of the left shoulder, subacromial impingement 

syndrome and strains of the bilateral shoulders and post-traumatic left shoulder arthritis. 

Dr. Bolno questioned whether Dr. Smith reviewed the abnormal findings on magnetic resonance 

imaging (MRI) scan study of the cervical spine and noted that an electromyogram (EMG) 

showed carpal tunnel syndrome. He found that appellant was totally disabled. 

On November 6, 2012 OWCP requested that Dr. Bolno review Dr. Smith’s report and 

indicate whether he concurred with his conclusions. On November 16, 2012 Dr. Bolno found 

that appellant was totally disabled due to bilateral cuff injuries and cervical radiculopathy 

sustained on August 10, 2010. 

OWCP determined that a conflict existed between Dr. Smith and Dr. Bolno regarding 

whether appellant had any continuing disability due to his accepted work injury. On 

November 29, 2012 it referred appellant to Dr. Joseph A Jelen, Jr., a Board-certified orthopedic 

surgeon, for an impartial medical examination.4

 

On December 18, 2012 Dr. Jelen reviewed the history of the August 10, 2010 work injury 

and medical reports of record, including the results of MRI scan studies of the shoulder and 

cervical spine. On examination, he found normal sensation and motion with a negative Tinel’s 

sign and straight leg raise. Dr. Jelen diagnosed resolved cervical strain and a resolved transient 

soft tissue stretch. He found normal range of motion of the neck with only “occasional 

paresthesias,” which he advised may result from a preexisting condition. Dr. Jelen found that 

appellant had no limitations or residuals of his accepted work injury based on the physical 

examination findings. He related that the September 7, 2010 cervical MRI scan study showed 

“mostly degenerative changes and findings consistent with his previous cervical fusion” and that 

 4

 The record contains a November 29, 2012 MEO23, Appointment Schedule Notification, referring appellant to 

Dr. Jelen for an impartial medical examination and a screen shot showing the selection of Dr. Jelen. 
4

an MRI scan study of the left shoulder dated September 3, 2010 showed increased anterior 

labrum signal but no tear. 

By letter dated January 15, 2013, OWCP advised appellant of its proposed termination of 

his compensation and authorization for medical benefits. 

By letter dated January 28, 2013, OWCP informed Dr. Bolno that it had only accepted 

cervical strain due to the August 10, 2010 work injury. It noted that he had been treating 

appellant for cervical radiculopathy, ulnar compression neuropathy and carpal tunnel syndrome 

prior to his August 10, 2010 work injury. OWCP requested that Dr. Bolno review the report of 

Dr. Jelen and explain why appellant was disabled from work. 

On January 29, 2013 appellant’s attorney argued that Dr. Jelen’s report was inconsistent 

and unrationalized and thus not entitled to the weight of the evidence. 

By decision dated March 20, 2013, OWCP terminated appellant’s authorization for 

medical treatment effective March 19, 2013.5

 It found that Dr. Jelen’s report constituted the 

weight of the evidence and established that he had no further residuals of his August 10, 2010 

work injury. 

In a decision dated March 21, 2013, OWCP denied appellant’s claim for compensation 

from September 25 to November 19, 2010, December 4, 2010 to March 25, 2011, March 26 

to October 9, 2012, April 7 to October 9, 2012, October 20 to November 2, 2012 and 

September 24 to April 6, 2012. It found that Dr. Bolno, in his reports, diagnosed conditions 

unrelated to the August 2010 work injury. OWCP determined that Dr. Jelen’s opinion 

represented the weight of the evidence and established that he had no disability due to his 

August 10, 2010 employment injury. 

On March 25, 2013 appellant, through his attorney, requested an oral hearing before an 

OWCP hearing representative on the March 20, 2013 decision. On March 26, 2013 counsel also 

requested an oral hearing on the March 21, 2013 decision. 

At the July 17, 2013 hearing regarding the March 21, 2013 decision, counsel argued that 

Dr. Bolno’s opinion supported disability. He questioned whether OWCP properly selected 

Dr. Jelen as an impartial medical examiner in accordance with its procedures and noted that 

Dr. Jelen did not address when disability ceased. 

In a report dated July 30, 2013, Dr. Bolno asserted that on August 10, 2010 appellant 

“was pushing heavy containers of mail out of trailers when he sustained trauma to his cervical 

spine, shoulders and lumbar spine, with severe radicular pain in both the upper and lower 

extremities.” He asserted that a September 2010 cervical MRI scan study showed foraminal 

encroachment on the left at C4-5, degenerative joint disease at C3-4 and C5-6, an anterior fusion 

at C6-7 and a herniated disc with impingement at C4-5 and C5-6.6

 An MRI scan study also 

 5

 OWCP’s March 20, 2013 decision purported to also terminate compensation benefits; however, appellant was 

not receiving wage-loss compensation at the time of the termination. 

6

 In a report dated July 3, 2013, Dr. Bolno expressed his disagreement with Dr. Smith’s opinion. 
5

showed an anterior labral tear of the left shoulder and EMG studies showed cervical 

radiculopathy and severe carpal tunnel syndrome bilaterally. Dr. Bolno questioned Dr. Jelen’s 

findings in view of the fact that appellant worked in his usual employment for five years before 

the August 10, 2010 work injury and given the examination findings and results of diagnostic 

studies. He asserted that the results of diagnostic studies confirmed that he had sustained more 

than a soft tissue injury. 

On August 22, 2013 counsel changed his request for an oral hearing on the 

March 20, 2013 termination decision to a request for a review of the written record. 

By decision dated October 21, 2013, OWCP’s hearing representative affirmed the 

March 21, 2013 decision. In a decision dated November 4, 2013, the hearing representative 

affirmed the March 20, 2013 decision. 

On appeal, counsel argues that Dr. Smith’s opinion is speculative and thus of little 

probative value. He also contends that there is no evidence that OWCP properly selected 

Dr. Jelen as an impartial medical examiner. Counsel maintains that Dr. Jelen did not address the 

significance of a September 7, 2010 MRI scan study finding C3-4 nerve encroachment or the 

results of EMG studies. He also argues that Dr. Jelen’s finding that the cervical strain appeared 

to be resolved was speculative in nature and that he did not address exactly when the disability 

ceased or knowledge of appellant’s work duties. 

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.7

 

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.8

 The 

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

disability compensation.9 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.10

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.11 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

 7 Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001). 

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

9 T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002). 

10 Id. 

11 5 U.S.C. § 8123(a). 
6

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.

12 

ANALYSIS -- ISSUES 1 

The Board finds that the record contains an unresolved conflict regarding whether 

appellant sustained conditions other than neck strain as a result of the August 10, 2010 

employment injury. In a report dated October 8, 2010, Dr. Bolno, appellant’s attending 

physician, advised that on August 10, 2010 appellant sustained an acute labral tear in his left 

shoulder and aggravated a preexisting cervical condition which resulted in new cervical 

radiculopathy. Dr. Smith, an OWCP referral physician, diagnosed neck strain due to the 

August 10, 2010 work injury. He found that appellant had not aggravated preexisting arthritis of 

the neck. Based on Dr. Smith’s opinion, OWCP accepted that appellant sustained resolved neck 

sprain as a result of his August 10, 2010 work injury. 

On October 25, 2012 Dr. Bolno diagnosed an acute cervical sprain with radiculopathy, 

acute bilateral carpal tunnel syndrome, an acute glenoid tear of the left shoulder, bilateral 

shoulder strains and post-traumatic left shoulder arthritis. On November 16, 2012 he advised 

that appellant was totally disabled due to bilateral rotator cuff injuries and cervical radiculopathy 

as a result of an injury on August 10, 2010. OWCP determined that a conflict existed between 

Dr. Smith and Dr. Bolno regarding whether appellant had any continuing disability due to his 

accepted neck strain. It referred appellant to Dr. Jelen for an impartial medical examination. 

Based on Dr. Jelen’s report, OWCP purported to terminate his compensation for total disability 

as well as his authorization for medical benefits. However, at the time of OWCP’s termination 

decision, appellant was not receiving compensation for disability. Further, the Board finds that, 

at the time OWCP accepted appellant’s claim for resolved neck sprain, the record contained an 

unresolved conflict in medical opinion between Dr. Bolno and Dr. Smith regarding whether 

appellant sustained a soft tissue injury or an aggravation of a preexisting cervical condition and 

labral tear of the left shoulder due to the August 10, 2010 work injury. Consequently, OWCP 

did not meet its burden of proof to terminate appellant’s authorization for medical benefits due to 

the August 10, 2010 employment injury. 

Given that the Board finds a conflict exists regarding the diagnosed conditions resulting 

from the August 10, 2010 employment incident, it is premature to address the issue of whether 

appellant sustained intermittent disability from September 25, 2010 to April 6, 2012 due to his 

accepted employment injury.13

 12 20 C.F.R. § 10.321. 

13 If OWCP further develops the record by sending appellant to an impartial medical specialist, he should resolve 

the issue of the diagnosed conditions resulting from the August 10, 2001 employment injury and address any periods 

of disability resulting from the work injury. 
7

CONCLUSION 

The Board finds that OWCP improperly terminated appellant’s authorization for medical 

benefits effective March 19, 2013. 

ORDER 

IT IS HEREBY ORDERED THAT the November 4, 2013 decision of the Office of 

Workers’ Compensation Programs is reversed and the October 21, 2013 decision is set aside. 

Issued: September 2, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees' Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees' Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees' Compensation Appeals Board