United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jersey City, NJ, Employer 

__________________________________________ 

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Docket No. 13-2138 

Issued: March 25, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 17, 2013 appellant, through his representative, filed a timely appeal from 

the June 26, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), 

which denied her claim for continuing compensation. Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

review this decision. 

ISSUE 

The issue is whether appellant has met her burden to establish that she had a continuing 

condition or disability causally related to her accepted employment injury. 

FACTUAL HISTORY 

On August 24, 2009 appellant, a 33-year-old general clerk, filed an occupational disease 

claim alleging that the pain and swelling in her arms was a result of the repetitive and other 

 1

 5 U.S.C. § 8101 et seq.
2

duties she performed in the course of her federal employment. OWCP accepted her claim for 

tendinitis of the right hand and wrist. It later accepted bilateral carpal tunnel syndrome. 

A conflict arose on whether appellant continued to have residuals of the accepted 

employment injury. Dr. Edward M. Weiland, a Board-certified neurologist and second-opinion 

physician, could find no evidence of any lateralizing neurologic deficits as it related to the 

accepted injury. He saw no reason appellant could not perform activities of daily living and 

return to gainful employment. Dr. Mark A.P. Filippone, the attending Board-certified 

physiatrist, found that appellant remained totally disabled for work as a result of her bilateral 

carpal tunnel syndrome. 

To resolve the conflict, OWCP referred appellant to Dr. Dev R. Gupta, a Board-certified 

neurologist, who performed a comprehensive neurological examination of appellant. Although 

appellant had multiple complaints, Dr. Gupta did not find anything objectively abnormal. He 

noted that an electromyogram (EMG) study performed by Dr. Filippone showed electrical 

evidence of bilateral carpal tunnel syndrome, but he could make no specific neurological 

diagnosis. On clinical grounds, there was no evidence of neurological disease. 

Dr. Gupta reexamined appellant the following year and found no abnormalities or 

deficits. He also performed EMG and conduction velocity studies in both upper extremities, and 

they were within normal limits. Specifically, there was no evidence of carpal tunnel syndrome. 

In an August 27, 2012 decision, OWCP terminated appellant’s compensation for the 

accepted employment injury effective that date. On March 14, 2013 an OWCP hearing 

representative affirmed. The hearing representative found that the opinion of the impartial 

medical specialist, Dr. Gupta, was based on a proper factual and medical background and was 

sufficiently well reasoned that it must be given special weight in resolving the conflict and 

establishing that the accepted conditions had resolved. 

In a February 25, 2013 report, Dr. Filippone noted that his findings that day gave obvious 

evidence of carpal tunnel syndrome. He added that his studies on October 9, 2009 objectively 

showed evidence of carpal tunnel syndrome. Dr. Filippone noted that Dr. Gupta failed to 

perform mid-palm calculations. It was his opinion that “we are using an over-simplified nerve 

conduction study to pull the rug out from under the patient as she continues to suffer from 

bilateral carpal tunnel syndrome.” Dr. Filippone was of the opinion that appellant remained 

totally disabled directly and solely as a result of the injuries she sustained at work. 

Appellant requested reconsideration and argued that Dr. Gupta’s EMG testing was in 

conflict with Dr. Filippone’s findings and that a new conflict was created requiring a referee 

examination. 

On June 26, 2013 OWCP granted appellant’s reconsideration request, reviewed the 

merits of her claim and denied modification of its prior decision. It noted that Dr. Gupta was 

selected to resolve a conflict involving Dr. Filippone and that Dr. Gupta’s substantially more 

recent EMG studies were afforded greater probative value. 

Appellant’s representative argues that Dr. Filippone’s most recent report confirmed that 

appellant still suffers from the residuals of the work injury. He adds that Dr. Gupta’s opinion 
3

should not carry the weight of the medical evidence, as he did not perform proper neurologic 

testing, including EMG testing to the mid palmar portion of the median nerve in both arms. 

Appellant’s representative suggests that a new referee medical examination is needed and new 

EMG testing required to resolve the conflict in medical evidence.2

LEGAL PRECEDENT 

The United States shall pay compensation for the disability of an employee resulting 

from personal injury sustained while in the performance of duty.3

 Once OWCP accepts a claim, 

it has the burden of proof to justify termination or modification of compensation benefits.4

 

Where OWCP meets its burden of proof in justifying termination of compensation benefits, the 

burden is on the claimant to establish that any subsequent condition or disability is causally 

related to the accepted employment injury.5

The claimant must submit a rationalized medical opinion that supports a causal 

connection between her current condition or disability and the employment injury. The medical 

opinion must be based on a complete factual and medical background with an accurate history of 

the employment injury, and must explain from a medical perspective how the current condition 

or disability is related to the injury.6

ANALYSIS 

OWCP accepted appellant’s occupational disease claim for tendinitis of the right hand 

and wrist and for bilateral carpal tunnel syndrome. It terminated her compensation effective 

August 27, 2012 on the basis of the opinion given by Dr. Gupta, the Board-certified neurologist 

and impartial medical specialist, who could find no evidence of neurologic disease and no 

specific neurological diagnosis based on examination and diagnostic testing. 

An OWCP hearing representative affirmed the termination, finding that Dr. Gupta’s 

opinion represented the weight of the medical evidence. 

OWCP having met its burden to terminate compensation, the burden shifted to appellant 

to establish that she had a continuing condition or disability causally related to her accepted 

employment injury. 

 2

 Appellant’s representative asks that this matter be combined with the appeal pending under Docket No. 

13-1596. That appeal, however, was dismissed by the Board on October 25, 2013. Docket No. 13-1596 (issued 

October 25, 2013). 

3

 5 U.S.C. § 8102(a). 

4 Harold S. McGough, 36 ECAB 332 (1984). 

5 Maurice E. King, 6 ECAB 35 (1953); Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of 

compensation payments, warranted on the basis of the medical evidence, the burden shifts to the claimant to show 

by the weight of the reliable, probative and substantial evidence that, for the period for which he claims 

compensation, he had a disability causally related to the employment resulting in a loss of wage-earning capacity). 

6 John A. Ceresoli, Sr., 40 ECAB 305 (1988). 
4

In support thereof, appellant submitted the February 25, 2013 report of Dr. Filippone, the 

attending Board-certified physiatrist, who argued that his examination findings showed evidence 

of carpal tunnel syndrome. But this was not new. Dr. Filippone had reported the same in the 

past. It was that opinion, supported by an EMG study in 2009, which caused a conflict with 

Dr. Weiland, the Board-certified neurologist and second-opinion physician, who could find no 

evidence of any lateralizing neurologic deficits as it related to the accepted injury. 

OWCP’s hearing representative found that Dr. Gupta resolved that conflict. 

Dr. Filippone’s current examination findings and opinion on continuing residuals are not 

sufficiently probative to create a second conflict.7

 Notably, he provided no current EMG and 

conduction velocity studies to support his opinion.8

 Dr. Filippone questioned Dr. Gupta’s failure 

to perform mid-palm calculations, but he did not establish that such testing was mandatory or 

was necessary to the opinion of the Board-certified neurologist or would show, if performed, 

abnormal conduction velocities establishing the continuing presence of carpal tunnel syndrome. 

Dr. Filippone’s calculations based on his testing in 2009 are immaterial. 

The Board finds that the medical evidence is not sufficient to create a second conflict or 

to establish that appellant has a continuing condition or disability causally related to her accepted 

employment injury. The Board will therefore affirm OWCP’s June 26, 2013 decision. 

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(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not met her burden to establish that she had a 

continuing condition or disability causally related to her accepted employment injury. 

 7 M.C., Docket No. 12-1720 (issued March 5, 2013). 

8 Cf. Gloria J. Godfrey, 52 ECAB 486 (2001) (finding that reports from the attending physician, who was on one 

side of the conflict, plus the findings of a more recent magnetic resonance imaging scan, created a new conflict with 

the opinion of the impartial medical specialist regarding the claimant’s ability to work). 
5

ORDER 

IT IS HEREBY ORDERED THAT the June 26, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 25, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board