United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Newark, NJ, Employer 

__________________________________________ 

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Docket No. 16-0982 

Issued: December 20, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 8, 2016 appellant, through counsel, filed a timely appeal from a November 13, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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. 

ISSUES 

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation and authorization for medical benefits effective January 20, 2015 as she had no 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

further disability or need for medical treatment causally related to her November 5, 1990 

employment injury; and (2) whether appellant has established that she had continuing 

employment-related disability after January 20, 2015. 

FACTUAL HISTORY 

OWCP accepted that in November 1990 appellant, then a 23-year-old clerk, sustained 

bilateral carpal tunnel syndrome causally related to factors of her federal employment. She 

underwent a right carpal tunnel release on February 18, 1992 and a left carpal tunnel release on 

November 16, 2010. OWCP paid appellant compensation for total disability beginning 

November 3, 2006.3

In a report dated January 18, 2012, Dr. Mark A.P. Filippone, a Board-certified 

psychiatrist, related that an electromyogram (EMG) and a nerve conduction velocity (NCV) 

study performed that date revealed findings consistent with bilateral carpal tunnel syndrome. He 

advised that appellant was totally disabled and enclosed a copy of the January 18, 2012 

electrodiagnostic testing. 

On February 3, 2012 OWCP referred appellant to Dr. Jeffrey F. Lakin, a Board-certified 

orthopedic surgeon, for a second opinion examination. In a report dated February 16, 2012, 

Dr. Lakin diagnosed bilateral carpal tunnel syndrome treated with surgical releases. On 

examination he found a negative Tinel’s sign and Phalen’s test and normal discrimination. 

Dr. Lakin determined that appellant had no objective findings of carpal tunnel syndrome or 

tendinitis and could return to her usual employment. 

OWCP advised appellant on March 23, 2012 that it proposed to terminate her wage-loss 

compensation and authorization for medical benefits as she had no residuals of her accepted 

work injury. 

Dr. Filippone, in a report dated April 9, 2012, found a positive Tinel’s sign bilaterally and 

a positive Phalen’s test especially on the left side. He opined that electrodiagnostic testing 

performed January 18, 2012 showed slowing of the median nerve at the carpal canals bilaterally. 

Dr. Filippone disagreed with Dr. Lakin’s finding that appellant could resume her usual 

employment. 

By decision dated April 24, 2012, OWCP terminated appellant’s compensation and 

entitlement to medical benefits effective that date. It found that Dr. Lakin’s opinion represented 

the weight of the evidence and established that she had no further condition or disability. 

Appellant, through counsel, requested an oral hearing before an OWCP hearing 

representative. She provided an April 23, 2012 report from Dr. Teofilo A. Dauhajre, a Board-

 3

 By decision dated January 4, 2008, OWCP terminated appellant’s wage-loss compensation and authorization for 

medical treatment. In a decision dated July 25, 2008, an OWCP hearing representative vacated the January 4, 2008 

decision after finding a conflict in medical opinion. OWCP again terminated appellant’s compensation benefits in a 

decision dated September 8, 2009. On April 19, 2010 an OWCP hearing representative set aside the September 8, 

2009 decision as the record contained an unresolved conflict in medical opinion regarding the cause of her left wrist 

condition. Following further development, OWCP accepted left carpal tunnel syndrome. 
3

certified orthopedic surgeon, who related that a January 18, 2012 EMG/NCV test showed 

bilateral carpal tunnel syndrome. Dr. Dauhajre found a positive Phalen’s sign on the left and 

diagnosed chronic left carpal tunnel syndrome. He opined that appellant was “restricted from 

returning back to her regular duties at work as a clerk....” 

Following a preliminary review, on June 28, 2012 an OWCP hearing representative set 

aside the April 24, 2012 decision. He found that Dr. Lakin’s opinion was not based on a proper 

background as he did not have Dr. Filippone’s January 18, 2012 report and the results of 

electrodiagnostic testing. The hearing representative remanded the case for OWCP to provide 

this evidence to Dr. Lakin and obtain a supplemental report. 

Dr. Dauhajre evaluated appellant on September 17, 2012. He diagnosed chronic carpal 

tunnel syndrome on the left side and found that she was disabled from her usual employment. 

In an addendum dated September 18, 2012, Dr. Lakin reviewed the additional evidence 

and opined that appellant had no objective findings of carpal tunnel syndrome on examination. 

He advised that she could return to her work without limitations. 

OWCP determined that a conflict arose between its referral physician, Dr. Lakin and 

appellant’s physicians, Dr. Filippone and Dr. Dauhajre. It referred her to Dr. Joseph Estwanik, a 

Board-certified orthopedic surgeon, for an impartial medical examination.4

 

In a report dated June 3, 2014, Dr. Estwanik reviewed appellant’s history of injury and 

the medical evidence of record. On examination he found normal range of motion of the neck, 

hands, and elbows. Dr. Estwanik found that appellant had “very unusual and extreme symptom 

magnification with falsified testing.” He related: 

“[Appellant] had manual strength testing of the biceps and had repetitive giving 

away, uncooperative testing and nonphysiological falsified weakness of the 

biceps. When again performing manual testing for triceps strength she produced 

nonphysiological symptom magnification and when simply testing her triceps and 

gripping only the radius and ulna, she had falsified giving away and actually had 

symptoms ‘going into her hands.’” 

Dr. Estwanik found no atrophy or reflex sympathetic dystrophy. He advised that when 

performing a Phalen’s test appellant pulled her hands away after 10 seconds of wrist flexion and 

related, “The fact that both arms simultaneously responded this way is nonphysiologic to any 

specific pathology in the right versus left. The Tinel’s test was performed and she stated that this 

started burning into both hands after [three to four] taps.” Dr. Estwanik opined that based on the 

objective evidence she could perform her work duties. He recommended a functional capacity 

evaluation (FCE) using a cross reference testing system (XRTS) hand strength assessment to 

accurately measure her effort and capacity. 

 4

 OWCP initially referred appellant to Dr. Michael Wujciak, a Board-certified orthopedic surgeon. However, it 

subsequently scheduled her with another physician upon determining that Dr. Wujciak had previously seen her as a 

referral physician. 
4

OWCP referred appellant, on September 23, 2014, for an XRTS FCE. On October 27, 

2014 a physical therapist found that the evaluation was not valid as she did not perform 

consistently and exhibited “[e]xtreme overt pain behavior.” Appellant also used no force on the 

XRTS hand strength assessment which was “most likely indicative of blatant noncompliance.” 

In a November 25, 2014 addendum, Dr. Estwanik reviewed the results of the XRTS 

testing and the evaluator’s finding that appellant had not provided consistent effort. He 

discussed his prior finding that she had no physiologic basis preventing a return to work. 

Dr. Estwanik determined that appellant could return to her usual employment and opined that she 

had reached maximum medical improvement (MMI) at least by July 23, 2009. In a work 

restriction evaluation dated November 25, 2014, he found that she had no limitations. 

OWCP advised appellant on December 16, 2014 of its proposed termination of her 

compensation and entitlement to medical benefits. 

In a December 15, 2014 attending physician’s report (Form CA-20), Dr. Filippone 

diagnosed bilateral carpal tunnel syndrome and a right ulnar nerve lesion. He checked a box 

marked “yes” that the condition was caused or aggravated by employment and found that 

appellant was totally disabled. 

Counsel, on December 30, 2014, contended that Dr. Estwanik did not provide the results 

of neurological testing and therefore he was not qualified to find a psychological reason for 

appellant’s disability. 

By decision dated January 20, 2015, OWCP terminated appellant’s wage-loss 

compensation and authorization for medical benefits effective that date. It found that the opinion 

of Dr. Estwanik as the impartial medical examiner represented the special weight of the evidence 

and established that she had no further employment-related disability or need for medical 

treatment. 

On January 27, 2015 appellant, through counsel, requested an oral hearing. 

In a report dated March 27, 2015, Dr. Filippone discussed appellant’s complaints of pain 

and numbness at the thenar eminence of the left wrist and pain bilaterally at the ulnar aspect, 

greater on the right side. On examination he found a positive Tinel’s sign bilaterally and atrophy 

especially on the right thenar eminence. Dr. Filippone diagnosed bilateral carpal tunnel 

syndrome and an ulnar nerve lesion due to her accepted employment injury. He opined that 

appellant was totally disabled. 

At the hearing, held on August 27, 2015, counsel contended that Dr. Estwanik did not 

address the January 18, 2012 positive electrodiagnostic testing or perform sensory testing. 

By decision dated November 13, 2015, OWCP’s hearing representative affirmed the 

January 20, 2015 decision. She found that appellant had not submitted evidence sufficient to 

overcome the special weight afforded to Dr. Estwanik as the impartial medical examiner. 

On appeal counsel contends that Dr. Estwanik’s opinion was not based on an accurate 

factual background as he did not consider the January 18, 2012 EMG and relied upon reports of 
5

other physicians. He also maintains that he failed to perform sensory tests and based his opinion 

on an invalid FCE. 

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.5

 

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.6

 

Additionally, the right to medical benefits for an accepted condition is not limited to the period 

of entitlement for disability compensation.7

 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.8

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.9 The implementing regulations provide 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 OWCP medical adviser, OWCP shall appoint 

a third physician to make an examination. This is called a impartial examination and OWCP will 

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

with the case.10

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.11

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained bilateral carpal tunnel syndrome due to factors 

of her federal employment. It paid her compensation for total disability beginning 

November 3, 2006. OWCP properly determined that a conflict arose between Dr. Lakin, the 

second opinion physician who found that appellant had no residuals of her work injury and could 

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

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

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

8 Id. 

9

 5 U.S.C. § 8123(a). 

10 20 C.F.R. § 10.321. 

11 Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002). 
6

resume her usual employment, and Dr. Filippone and Dr. Dauhajre, attending physicians who 

found that she had continued disability due to carpal tunnel syndrome. It consequently referred 

her to Dr. Estwanik, a Board-certified orthopedic surgeon, for an impartial medical examination 

to resolve the conflict pursuant to 5 U.S.C. § 8123(a). 

When a case is referred to an impartial medical examiner for the purpose of resolving a 

conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper 

factual and medical background, must be given special weight.12

On June 3, 2014 Dr. Estwanik reviewed the medical evidence of record and the history of 

injury. On examination he found extreme symptom magnification including give way weakness 

with motor strength testing of the biceps and triceps. Dr. Estwanik advised that when 

performing the Phalen’s test appellant pulled both hands away after 10 seconds, which showed 

that the problem was not physiologic. He found no atrophy or reflex sympathetic dystrophy. 

Dr. Estwanik opined that objectively appellant could perform the duties of her employment. He 

recommended an FCE with XRTS to accurately measure her strength and effort. 

A physical therapist found that the FCE with XRTS performed on October 27, 2014 was 

invalid due to pain behavior and the lack of consistent effort. On November 25, 2014 

Dr. Estwanik reviewed the XRTS test results and determined that appellant could return to her 

usual employment and that she had reached MMI from her injury. He completed a work 

restriction evaluation finding that she had no limitations. 

The Board finds that Dr. Estwanik provided a comprehensive, well-rationalized opinion 

based on a proper factual background, and thorough examination. He concluded that appellant 

had no residuals of her carpal tunnel syndrome or need for any work limitations and provided 

rationale by explaining that the examination showed extreme symptom magnification, as 

confirmed by XRTS testing. Dr. Estwanik further opined that she had reached MMI from her 

injury. His report, which is detailed and reasoned, is entitled to special weight and establishes 

that appellant has no further disability or need for medical treatment due to her bilateral carpal 

tunnel syndrome.13

The remaining evidence is insufficient to overcome the special weight accorded to 

Dr. Estwanik as the impartial medical examiner. In a form report dated December 15, 2014, 

Dr. Filippone diagnosed bilateral carpal tunnel syndrome and a right ulnar nerve lesion. He 

checked a box marked “yes” that the condition was caused or aggravated by employment and 

found that appellant was totally disabled. The Board has held, however, that when a physician’s 

opinion on causal relationship consists only of checking “yes” to a form question, without 

explanation or rationale, that opinion has little probative value.14

On appeal counsel argues that Dr. Estwanik’s opinion was not based on an accurate 

factual background as he did not consider the January 18, 2012 EMG, failed to perform sensory 

 12 5 U.S.C. § 8123(a); see O.C., Docket No. 15-0404 (issued November 19, 2015). 

13 See R.B., Docket No. 16-0010 (issued April 1, 2016); Sharyn D. Bannick, 54 ECAB 537 (2003). 

14 See Deborah L. Beatty, 54 ECAB 340 (2003). 
7

tests, relied on an invalid FCE, and reviewed the reports of other physicians. As discussed, 

however, Dr. Estwanik properly based his opinion on a review of the medical evidence, his 

findings on physical examination, and the results of XRTS testing. He further provided rationale 

for his conclusion by explaining that the examination and objective testing revealed extreme 

symptom magnification. Dr. Estwanik’s opinion thus represents the special weight of the 

evidence.15 

LEGAL PRECEDENT -- ISSUE 2 

As OWCP properly terminated appellant’s compensation benefits, the burden shifts to 

appellant to establish that she has continuing disability after that date related to her accepted 

injury.16 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.17 Causal relationship is a medical issue and the medical evidence required to 

establish a causal relationship is rationalized medical evidence.18 

ANALYSIS -- ISSUE 2 

Given the Board’s finding that OWCP properly relied upon the opinion of Dr. Estwanik 

in terminating compensation, the burden of proof shifts to appellant to establish that she remains 

entitled to compensation after that date.19 

On March 27, 2015 Dr. Filippone related that appellant experienced symptoms of pain 

and numbness at the thenar eminence of the left wrist and pain bilaterally at the ulnar aspect, 

greater on the right side. He found a positive Tinel’s sign bilaterally and atrophy especially on 

the right thenar eminence. Dr. Filippone diagnosed employment-related carpal tunnel syndrome 

of both wrists and an ulnar nerve lesion. He opined that appellant was totally disabled. 

Dr. Filippone did not bolster his causation finding with medical rationale and thus his reports are 

of little probative value.20 Additionally, he was on one side of the conflict in medical opinion 

previously resolved by Dr. Estwanik. Reports from a physician on one side of a medical 

conflict, resolved by an impartial medical examiner, are generally insufficient to overcome the 

special weight accorded the impartial medical examiner or to create a new conflict.21 

 15 See supra note 13. 

16 Manual Gill, 52 ECAB 282 (2001). 

17 Id. 

18 Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

19 See supra note 16. 

20 See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006) (medical evidence that 

states a conclusion, but does not offer any rationalized medical explanation regarding the cause of an employee’s 

condition is of limited probative value on the issue of causal relationship). 

21 See I.H., Docket No. 15-1798 (issued March 17, 2016); Alice J. Tysinger, 51 ECAB 638 (2000). 
8

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 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s wage-loss compensation and 

authorization for medical benefits effective January 20, 2015 as she had no further disability due 

to her November 5, 1990 employment injury. The Board further finds that she has not 

established continuing employment-related disability after January 20, 2015. 

ORDER 

IT IS HEREBY ORDERED THAT November 13, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 20, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board