United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.O., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, Philadelphia, PA, 

Employer 

__________________________________________ 

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Docket No. 15-1146 

Issued: February 2, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

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 24, 2015 appellant, through counsel, filed a timely appeal of a February 20, 

2015 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.2

ISSUE 

The issue is whether OWCP properly terminated appellant’s compensation for wage-loss 

and medical benefits effective August 24, 2014 as she no longer had any residuals or disability 

causally related to her accepted employment-related injury. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the February 20, 2015 decision, OWCP received additional evidence. 

However, the Board may only review evidence that was in the record at the time OWCP issued its final decision. 

See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); 

G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

On appeal counsel argues that there was no true conflict in the medical opinion evidence 

at the time OWCP referred appellant for an impartial medical examination, as both the second 

opinion physician and appellant’s treating physician concluded that she continued to have 

residuals, but had a minor disagreement on work restrictions. Next, counsel argues that the issue 

pending at the time of the referral to the impartial medical examiner was whether her claim 

should be expanded to include a cervical condition. Lastly, counsel argued that there is now an 

unresolved conflict between appellant’s treating physician and the physician selected as an 

impartial medical examiner as to whether appellant continues to have residuals and disability due 

to her accepted employment injuries. 

FACTUAL HISTORY 

On November 29, 2011 appellant, then a 45-year-old sourcing strategy specialist, filed an 

occupational disease claim (Form CA-2) alleging that she first became aware of her bilateral 

carpal tunnel condition on November 7, 2011, but was not aware that it was causally related to 

her working on a computer until November 10, 2011. OWCP accepted her claim for bilateral 

carpal tunnel syndrome, right radial tenosynovitis, left cubital tunnel, and posterior occipital 

neuralgia. By letter dated October 4, 2012, it placed appellant on the periodic rolls for temporary 

total disability effective August 29, 2012. Appellant returned to work on October 12, 2012 

working six hours per day for three days per week. She stopped work on April 16, 2013 and has 

not returned. By decision dated May 28, 2013, OWCP accepted appellant’s April 9, 2013 

recurrence of total disability. 

In a March 12, 2013 progress report, Dr. Scott M. Fried, a treating osteopath, provided 

physical examination findings and indicated that appellant was capable of part-time light-duty 

work. He opined that she was disabled from performing her usual work duties and requested she 

be able to work at home in an ergonomic setting. Diagnoses included tendinitis, bilateral carpal 

tunnel median neuropathy, right de Quervain’s tenosynovitis, right radial neuropathy, left ulnar 

neuropathy, right brachial plexopathy/cervical radiculopathy, and bilateral carpal tunnel median 

neuropathy. In concluding, Dr. Fried indicated that appellant was capable of part-time light-duty 

work. 

On April 22, 2013 OWCP referred appellant to Dr. Robert F. Draper, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine appellant’s work capabilities 

and whether she continued to suffer from her accepted employment injuries. 

On May 9, 2013 appellant declined a light-duty accommodated job offer of a sourcing 

strategy specialist from the employing establishment working six hours per day and three days 

per week. She noted that Dr. Fried concluded that the offered job was not within her restrictions. 

In an attending physician’s report Dr. Fried indicated that appellant was partially disabled for the 

period May 1 to 9, 2013 and totally disabled for the period May 9 to July 22, 2013. 

In a May 17, 2013 report, Dr. Draper diagnosed bilateral carpal tunnel syndrome, left 

cubital tunnel syndrome, and bilateral wrist de Quervain’s tenosynovitis. He opined that 

appellant continued to have residuals from the diagnosed conditions, but concluded that she was 

capable of performing sedentary work with restrictions three days per week for six hours per day. 
3

The restrictions included occasional lifting of up to10 pounds, frequent lifting of up to 5 pounds, 

no excessive overuse of both hands, and no repetitive typing on a keyboard. 

On July 31, 2013 OWCP referred appellant to Dr. William H. Simon, a Board-certified 

orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Drs. Draper 

and Fried on the issue of her work capability and restrictions. 

In an August 19, 2013 report, Dr. Simon, based upon a review of the medical evidence, 

statement of accepted facts (SOAP) injury, medical history, and physical examination, opined 

that appellant no longer had any residuals or disability due to her accepted conditions of bilateral 

carpal tunnel syndrome, right radial tenosynovitis, left cubital tunnel, and posterior occipital 

neuralgia. He identified the conflict between Drs. Fried and Draper concerning her work 

restrictions and job duties. A physical examination revealed normal lumbar and cervical range 

of motion; full range of motion of her shoulders, elbows, wrist, and hands, no evidence of 

bilateral upper arm, forearm, or hand atrophy, some left palm thenar muscle atrophy, negative 

bilateral Phalen’s test, and negative Finkelstein’s test. Dr. Simon diagnosed long-standing and 

progressive cervical degenerative joint disease and intervertebral disc disease and subjective 

symptoms of bilateral cervical radiculopathy, which were unconfirmed by electromyogram 

(EMG). He opined that three months of treatment for carpal tunnel syndrome should have been 

sufficient to relieve the symptoms. Next, Dr. Simon explained that a diagnosis of bilateral carpal 

tunnel condition could not be made by the EMG, which found no median nerve bilateral wrist 

compression neuropathy. He opined that appellant did not have any symptoms causally related 

to recurrent use of her bilateral upper extremities. Dr. Simon attributed appellant’s current 

condition and symptoms to underlying progressive cervical radiculopathy due to progressive 

cervical degenerative disc and joint diseases and opined that these conditions were not work 

related. In addition, he related that he found no evidence of bilateral de Quervain’s, ulnar nerve 

changes, or brachial plexus that could be the result of a repetitive stress injury. Dr. Simon 

concluded that he agreed with the work restrictions provided by Dr. Draper. However, he 

explained that the work restrictions were due to her progressive cervical degenerative condition 

and unrelated to any work-related repetitive stress condition. 

In a September 17, 2013 report, Dr. Fried diagnosed bilateral carpal tunnel median 

neuropathy/repetitive strain injury, tendinitis, right de Quervain’s tenosynovitis, right posterior 

occipital neuralgia, right radial neuropathy, left ulnar neuropathy, and right cervical 

radiculopathy/brachial plexopathy, which were all work related. He noted that appellant was 

currently disabled from working due to her employment injuries and that she was applying for 

disability retirement. Physical examination findings were unchanged from prior reports. 

Dr. Fried recommended an updated functional capacity evaluation (FCE) once appellant’s 

symptoms were stable enough to determine work restrictions. 

In an October 4, 2013 report, Dr. Fried noted a medical and employment history of injury 

from 2011 until 2013 and reviewed diagnostic data including orthopedic neuromusculoskeletal 

ultrasound. Diagnoses were unchanged from his prior report. Physical examination findings 

included positive Tinel’s sign at the medial, radial, and ulnar nerve and right thoracic outlet 

infraclavicular fossa, positive compression testing of the right radial nerve at the elbow, positive 

bilateral wrist compression testing, and positive Phalen’s test in the right hand. Dr. Fried opined 

that appellant had significant and ongoing bilateral upper extremity nerve injury due to her work 
4

activities which prevented her from performing her usual duties. He noted that she was unable to 

use a mouse, perform regular keying, reaching, gripping, speaking on a telephone, prolonged 

neck and head posturing activities, pushing, and pulling. Dr. Fried explained that appellant has 

attempted multiple times to return to work, even a modified job, and has been unable to do so as 

a result of her physical limitations. He reported that she had multiple positive tests including 

neuromusculoskeletal ultrasound evaluation, nerve conduction studies, and Tinel’s, Phalen’s, 

Roos, Hunter’s, and Compression tests. Dr. Fried opined that appellant was disabled from 

performing her regular or a similar job as she has strict sedentary requirements and is unable to 

regularly use her arms and hands. 

In progress reports dated February 24, April 10, and May 19, 2014, Dr. Fried noted that 

appellant was seen for her continued bilateral carpal tunnel, left ulnar, right cervical, and right 

wrist conditions. Appellant reported that the biggest issue was pain and associated spasms. 

Dr. Fried noted that appellant continued to be off work due to her accepted employment injuries. 

In office notes dated April 1 and May 28, 2014, Dr. Bruce H. Grolssinger, an examining 

Board-certified neurgologist and pain medicine physician, noted that appellant was currently out 

of work and continuked to have recurrent headaches, bilateral carpal tunnel pain, greater on the 

right, and burning neck pain, which extended to both shoulders, midscapular region, and arm. A 

physical examination revealed reduced cervical range of motion on forward flexion and greater 

with right lateral rotation, positive bilateral Tinel’s sign, and bilateral low paravertebral muscle 

spasm. Dr. Grossinger opined that appellant continued to have evidence of brachial plexopathy, 

cervical sprain with right-sided greater joccipatal neuralgia, forearm tendinitis with epicondylitis, 

bilateral carpal tunnel syndrome, and left ulnar neuropathy, which were due to the accepted 

November 7, 2011 work injury. 

On June 12, 2014 OWCP issued a notice proposing to terminate appellant’s 

compensation benefits based on Dr. Simon’s opinion that she no longer had any disability or 

residuals due to her accepted work-related injuries. 

By letter dated June 23, 2014, appellant’s counsel disagreed with the proposal to 

terminate appellant’s benefits and argued that there was not a conflict in the medical opinion 

evidence between Drs. Draper and Simon. Counsel also raised arguments regarding whether 

Dr. Simon was properly selected as the impartial medical examiner. 

In a July 1, 2014 letter, counsel argued that Dr. Simon’s report was insufficient to 

represent the weight of the evidence particularly as he disagrees that appellant has bilateral 

carpal tunnel syndrome, which is an accepted condition. Counsel argued that Dr. Simon’s 

opinion was also in conflict with the opinions of Dr. Fried, appellant’s treating physician, and 

Dr. Draper, an OWCP second opinion physician. Thus, counsel argued that Dr. Simon’s opinion 

created a new conflict and referral to a new impartial medical examiner is required under section 

8123(a). Next, counsel argues that Dr. Simon diagnosed cervical radiculopathy or a cervical 

degenerative condition, but offers no opinion as to whether these conditions were caused or 

aggravated by appellant’s employment duties. Counsel requested that appellant’s claim be 

expanded to include the cervical conditions. 
5

In progress reports dated July 8, 2014, Dr. Fried reiterated findings from prior reports. 

He related that appellant’s sypmtoms were definitely impacted by activities and use and that she 

was currently disabled from working. 

A July 8, 2014 neuromusculoskelatal ultrasound procedure report revealed radial tunnel 

nerve compression at 70 percent, substantial nerve swelling at a grade 2, substantial Vascular 

Leash of Henry, grade 2 perineural scarring, and markedly positive compression testing. 

In a July 10, 2014 report, Dr. Fried provided a history of appellant’s injury and 

summarized report findings by Drs. Draper and Simon. He related that he had never found 

appellant totally disabled as she was capable of working with restrictions. Dr. Fried explained 

that, following her return to work in 2012, she reported an increase in her fatigue and pain as 

well as an increase in her hand symptoms. He explained that he diagnosed bilateral carpal tunnel 

syndrome or repetitive strain injury based on the findings of posterior occipital neuralgia, 

tenosynovitis, radial neuropathy, and evidence of C5-T1 radiculopathy. Dr. Fried explained that 

T5-T1 radiculopathy was cervical radiculopathy which he attributed to appellant’s work injury 

and main scarring of the brachial plexus and paracervical musculature, which he opines was 

consistent with cervical syndrome. He reiterated his opinion that she was capable of working 

with restrictions including limited keying, reaching, pushing, pulling, grasping, and writing. 

Dr. Fried noted that when appellant attempted to work six hours per day performing activities 

within her restrictions that she severely aggravated and exacerbated her work-related conditions. 

He then summarized the restrictions recommended in a December 16, 2013 FCE. In concluding, 

Dr. Fried noted his disagreement with Dr. Simon’s report and that appellant continues to have 

residuals and disability as the result of her employment injuries. 

On July 22, 2014 OWCP provided Dr. Fried’s July 10, 2014 report to Dr. Simon to 

review and provide an addendum report. 

In a July 25, 2014 addendum, Dr. Simon noted that he agreed with the work restrictions 

set by Dr. Draper and that appellant should not return to using a keyboard or computer. He noted 

that the conditions accepted by OWCP included bilateral carpal tunnel syndrome, right radial 

tenosynovitis, left cubital tunnel, and posterior occipital neuralgia. However, Dr. Simon noted 

that the SOAF did not indicate whether one or all of the accepted conditions were due to 

repetitive trauma. He further noted that, while he has to accept the diagnoses noted by OWCP, 

he does “not have to accept the persistence of those diagnoses” when he examined appellant two 

years later. Dr. Simon concluded by noting that Dr. Fried, Dr. Draper, and he were all in 

agreement that appellant could return to modified work using Dragon software, a dictation 

machine, and headphone for answering the telephone. The only disagreement he noted concerns 

his opinion that appellant’s current impairment is unrelated to her work duties or to repetitive 

trauma. 

By decision dated August 19, 2014, OWCP finalized the termination of appellant’s 

compensation benefits effective August 24, 2014. 

In a fax request and letter dated August 21, 2014, appellant’s counsel requested a hearing 

before an OWCP hearing representative. A video hearing was held on December 5, 2014. 
6

By decision dated February 20, 2015, an OWCP hearing representative affirmed the 

termination of appellant’s compensation. 

LEGAL PRECEDENT 

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

modification, or termination of an employee’s benefits.3

 After it has determined that an 

employee has disability causally related to his or her federal employment, OWCP may not 

terminate compensation without establishing that the disability has ceased or that it is no longer 

related to the employment.4

 OWCP’s burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.5

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

entitlement for disability.6

 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of a work-related condition, which would require 

further medical treatment.7

Section 8123(a) of FECA provides in pertinent part: 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.8 Where a case is 

referred to an impartial medical specialist 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.9

ANALYSIS 

OWCP accepted appellant’s claim for bilateral carpal tunnel, right radial tenosynovitis, 

left cubital tunnel, and posterior occipital neuralgia. By decision dated August 19, 2014, it 

terminated her medical and compensation benefits effective August 24, 2014. In making this 

determination, OWCP gave special weight to the opinion of Dr. Simon as the impartial medical 

examiner. An OWCP hearing representative affirmed the decision terminating appellant’s 

compensation benefits on February 20, 2015. The Board finds that OWCP improperly 

terminated her compensation benefits. 

 3 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

4 I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

5 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 

6 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

7 Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003). 

8

 5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006). 

9 V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994). 
7

OWCP referred appellant to Dr. Simon for an impartial medical examination. At the time 

of the referral, however, there was no conflict as to whether she had continuing residuals from 

her accepted conditions. Dr. Fried believed that appellant continued to have residuals and 

disability due to her accepted conditions, but found that she was able to return to part-time work. 

He noted in multiple reports that her accepted bilateral carpal tunnel, right radial tenosynovitis, 

left cubital tunnel, and posterior occipital neuralgia had not resolved. Dr. Draper, the second 

opinion physician, agreed that appellant continued to have residuals from the accepted bilateral 

carpal tunnel syndrome, left cubital tunnel syndrome, and bilateral wrist de Quervain’s 

tenosynovitis, but also found that she could return to part-time work. 

OWCP referred appellant to Dr. Simon to resolve a conflict in the medical opinion 

evidence regarding her work capability. In his July 25, 2014 addendum, Dr. Simon noted that he 

agrees with both Drs. Draper and Fried that she is capable of working with restrictions and 

concurs with the restrictions set by Dr. Draper. He noted that the only disagreement between his 

opinion and the opinions of Drs. Draper and Fried was whether appellant’s current disability is 

related to her work duties or repetitive trauma. There was no conflict regarding her ability to 

work at the time of the referral. Although Dr. Simon’s report is not entitled to the special weight 

afforded to the opinion of an impartial medical specialist, his report can still be considered as a 

second opinion.10 He finds appellant able to work part time, but the restrictions refer only to 

cervical issues unrelated to work. Dr. Simon finds that all the accepted conditions had resolved. 

Subsequent to Dr. Simon’s opinion, Dr. Fried has determined that appellant remained disabled as 

a result of the employment injuries and that a new FCE was needed to determine her work 

restrictions. 

The Board finds that there now exists an unresolved conflict in the medical evidence 

between Dr. Fried and Dr. Simon as to whether appellant is able to return to work and whether 

she has any residuals from her employment injury. Because OWCP bears the burden of proof to 

terminate benefits, the Board will reverse the hearing representative’s decision affirming the 

termination of benefits. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation effective August 24, 2014. 

 10 R.C., Docket No. 09-2217 (issued September 8, 2010). 
8

ORDER 

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

Compensation Programs dated February 20, 2015 is reversed. 

Issued: February 2, 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