United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Fort Dix, NJ, Employer 

__________________________________________ 

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Docket No. 14-0472 

Issued: August 17, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 26, 2013 appellant, through counsel, filed a timely appeal from a 

September 18, 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 March 4, 2013, and (2) whether appellant has 

established a continuing employment-related condition or disability after March 4, 2013. 

FACTUAL HISTORY 

On October 5, 2011 appellant, was a 47-year-old corrections officer. On that date she 

filed a traumatic injury claim (Form CA-1) alleging that she sustained a left arm injury on 

 1

 5 U.S.C. § 8101 et seq. 
2

September 28, 2011 while in the performance of duty, as a result of shooting firearms on that 

date. The Board notes that appellant had prior claims involving the left arm that have been 

consolidated with the present claim. Appellant filed an occupational claim (Form CA-2) dated 

September 1, 2010, alleging that continuous use of the left arm for lifting items such as files and 

mail buckets had resulted in a left elbow injury. On January 20, 2011 OWCP accepted the claim 

for a left shoulder bursae and tendon disorder, and left elbow enthesopathy. Appellant also filed 

a claim for a recurrence of disability (Form CA-2a) on September 8, 2010 from lifting files and 

mail bins for five years. OWCP developed this incident as a separate occupational claim, and on 

February 22, 2011 stated that the accepted conditions were: left shoulder impingement 

syndrome, left lateral epicondylitis, left lateral extensor tendon tear and left elbow tendinitis. 

The September 8, 2010 claim was designated the master file with respect to the consolidated 

claims, and appellant began receiving compensation as of November 5, 2010. 

In a prior appeal, the Board noted that OWCP had terminated compensation for wage loss 

effective July 19, 2011. The Board affirmed a June 13, 2012 OWCP decision, finding the 

medical evidence did not establish continuing disability after July 19, 2011. 

By decision dated December 1, 2011, OWCP denied the claim for compensation on the 

grounds that the medical evidence was insufficient to establish a traumatic injury claim. 

Appellant requested a hearing before an OWCP hearing representative, which was held on 

March 13, 2012. The hearing representative stated that an emergency room report established a 

left elbow strain as causally related to the September 28, 2011 employment incident. In a 

May 10, 2012 decision, she stated that the December 1, 2011 OWCP decision was reversed. 

Appellant began receiving wage-loss compensation as of November 14, 2011. 

The record indicates that effective April 8, 2012 appellant began working at the 

employing establishment as a legal assistant. She continued to receive compensation for wage 

loss, adjusted to reflect her earnings.2

 

In a report dated July 6, 2012, the attending osteopath, Dr. Laura Ross, provided results 

on examination and diagnosed status post left elbow sprain with ulnar neuritis. In a form report 

dated July 19, 2012, she diagnosed left lateral epicondylitis/ulnar neuritis and checked a box 

“yes” the condition was causally related to using firearms. 

In a report dated September 10, 2012, Dr. Ross discussed her treatment of appellant’s 

condition. She opined: “The trauma and force of the use of her firearm, while qualifying for a 

firearms test at work on September 28, 2011 directly caused the exacerbation of her underlying 

lateral epicondylitis of her left elbow, as well as left elbow ulnar neuropathy.” Dr. Ross stated 

that her findings were based on multiple physical examinations and diagnostic testing. 

OWCP prepared a statement of accepted facts with respect to the left arm claims and 

referred appellant for a second opinion examination by Dr. Stanley Askin, a Board-certified 

orthopedic surgeon. It requested that Dr. Askin provide an opinion as to whether appellant 

continued to have a left elbow sprain, whether a left lateral epicondylitis was related to the 

 2

 OWCP did not issue a formal wage-earning capacity determination. 
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September 28, 2011 employment injury, and whether she could perform the corrections officer 

position. 

In a report dated December 21, 2012, Dr. Askin provided a history and results on 

examination. With respect to the accepted left elbow condition, he stated that a sprain was a 

partial tear of the ligament. Dr. Askin opined, “There is no description of any condition by 

record or clinical presentation that suggests that she continues to have a partial tear of a ligament 

at the left elbow and consequentially that condition is not still present.” As to a left lateral 

epicondylitis, he stated “I do not find any anatomic condition consequential to her work 

activities.” Dr. Askin indicated that appellant had an “intolerance for the nature of her 

employment” that “is not anatomic, and it is nothing that would respond to interaction by any 

healthcare provider as her past history has already amply documented.” He concluded, “There is 

no work-related reason to prevent her from performing her regular duties as a correction officer.” 

By letter dated February 1, 2013, OWCP advised appellant that it proposed to terminate 

compensation for wage-loss and medical benefits based on the weight of the medical evidence of 

record. In a letter dated February 11, 2013, appellant’s counsel argued that Dr. Ross had 

maintained that appellant suffered residual disability and should create a conflict with Dr. Askin. 

By decision dated March 4, 2013, OWCP terminated compensation for wage-loss and 

medical benefits effective that date. It found the weight of the medical evidence was represented 

by Dr. Askin. 

Appellant requested a hearing before an OWCP hearing representative, which was held 

on July 15, 2013. In a report dated May 24, 2013, Dr. Ross stated that she disagreed with the 

findings of Dr. Askin. She opined that the injury on September 28, 2011 had exacerbated 

underlying left lateral epicondylitis, and caused left ulnar neuropathy. Dr. Ross stated that 

appellant continued to have residuals of these work-related conditions. 

By decision dated September 18, 2013, the hearing representative affirmed the March 4, 

2013 decision. She found that Dr. Askin represented the weight of the medical evidence. 

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

ANALYSIS -- ISSUE 1 

In the present case, the only accepted condition with respect to the September 28, 2011 

employment incident was a left elbow strain. In this regard, the Board notes that Dr. Ross had 

diagnosed status post left elbow “sprain” in her July 6, 2012 report, and the question posed to 

Dr. Askin referred to the accepted condition as a left elbow sprain. The diagnoses are similar but 

 3 Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503. 
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not identical, as a “strain” refers to a muscle or tendon, while a “sprain” refers to a ligament, as 

noted by Dr. Askin.4

 In this case the evidence indicates that, whether identified as a strain or 

sprain, the accepted condition had resolved as of March 4, 2013. As noted, Dr. Ross refers to a 

left elbow sprain as “status post” in her July 6, 2012 report, and her September 10, 2012 report 

provides other diagnoses that will be discussed below. Dr. Askin clearly found no continuing 

left elbow strain or sprain, and his report indicated that he found no physical condition related to 

the September 28, 2011 employment injury. 

Based on the probative evidence of record, the Board finds that OWCP met its burden of 

proof to terminate compensation based on the accepted left elbow strain/sprain. On appeal, 

appellant argues that Dr. Askin was not provided a proper background. However, the statement 

of accepted facts was detailed in discussing all of the left elbow injury claims and states that the 

September 28, 2011 injury was due to firing firearms. There is no evidence that Dr. Askin lacks 

a proper background to render a decision on the issue presented. 

LEGAL PRECEDENT -- ISSUE 2 

After termination or modification of benefits, clearly warranted on the basis of the 

evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail, 

appellant must establish by the weight of the reliable, probative and substantial evidence that he 

had an employment-related disability which continued after termination of compensation benefits.5

ANALYSIS -- ISSUE 2 

The attending physician, Dr. Ross, has opined in her reports of November 10, 2011 and 

May 15, 2013 that the September 28, 2011 employment injury caused aggravation of left lateral 

epicondylitis and ulnar neuritis. Her opinion was based on examination and electromyography 

and other test results. The second opinion physician, Dr. Askin, opined in his report dated 

December 21, 2012 that appellant did not have any continuing employment-related physical 

conditions. He indicated that his opinion was based on the examination results and review of the 

medical evidence. 

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

appellant has established a left lateral epicondylitis or ulnar neuritis as causally related to the 

September 28, 2011 employment injury.6

 If there are additional employment-related conditions, 

this raises the issues of whether there continued to be an employment-related condition or 

 4 See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (1988).

5 Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

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 FECA provides that, if there is a 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 the 

examination. 5 U.S.C. § 8123(a). The implementing regulations state 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 OWCP medical 

adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial 

examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case. 20 C.F.R. § 10.321(b). 
5

disability after March 4, 2013. Appellant had returned to a light-duty job, but until March 4, 

2013 was still receiving wage-loss compensation adjusted for her actual earnings. The case will 

be remanded to OWCP to resolve the conflict in accord with established procedures for resolving 

conflicts under 5 U.S.C. § 8123(a). After such further development as OWCP deems necessary, 

it should issue an appropriate decision with findings as to whether there are additional 

employment-related conditions and whether there was an employment-related disability after 

March 4, 2013. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate compensation on 

March 4, 2013 based on the accepted condition. The case is remanded to OWCP to resolve a 

conflict with respect to whether appellant had a continuing employment-related condition or 

disability after March 4, 2013. 

ORDER 

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

Compensation Programs dated September 18, 2013 is affirmed with respect to termination of 

compensation for the accepted condition, and is set aside and remanded with respect to a 

continuing employment-related condition or disability after March 4, 2013. 

Issued: August 17, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board