United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

DEPARTMENT OF THE ARMY, COMMAND 

SAFETY OFFICE, Fort Drum, NY, Employer 

__________________________________________ 

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Docket No. 14-1975 

Issued: February 26, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 9, 2014 appellant, through counsel, filed a timely appeal of a July 23, 2014 

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. 

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s 

compensation and medical benefits effective November 12, 2013. 

On appeal, appellant’s counsel argues that the decision is contrary to law and fact. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated January 26, 2011, 

the Board reversed a December 28, 2009 decision of OWCP terminating appellant’s 

compensation on the grounds that she refused an offer of suitable work pursuant to 5 U.S.C. 

§ 8106(c).2

 The Board found that there was an unresolved conflict in the medical opinion 

evidence between Dr. Steven B. Fish, a treating Board-certified orthopedic surgeon, and 

Dr. Christopher V. Horn, a second opinion Board-certified orthopedic surgeon, on what her work 

restrictions were. The facts and circumstances of the case as set forth in the Board’s prior 

decisions are incorporated herein by reference.3 

Following the Board’s decision, OWCP reinstated appellant on the periodic rolls for 

temporary total disability. 

In a June 24, 2011 attending physician’s report, Dr. Fish diagnosed knee pain and 

provided work restrictions. He checked “no” to the question of whether there had been any 

history or evidence of a preexisting injury, physical impairment, or disease. 

In a June 24, 2011 report, Dr. Fish diagnosed bilateral knee pain and acromioclavicular 

(AC) joint arthritis and pain. He noted that appellant injured her left shoulder and both knees, 

primarily the left knee, when she slipped and fell on ice at work on February 9, 2005. A physical 

examination revealed AC joint tenderness, good left shoulder range of motion with moderate 

impingement signs, good bilateral knee range of motion, and moderate tenderness over the left 

knee joint line. 

In subsequent reports dated September 12, 2011 and April 30, 2012, Dr. Fish reported 

appellant was seen for a follow-up of her employment-related left shoulder and bilateral knee 

injuries. He provided physical findings and reported no change as she was “doing basically the 

same.” 

On April 12, 2013 OWCP referred appellant for a second opinion evaluation with 

Dr. Aubrey A. Swartz, an orthopedic surgeon, for an evaluation of her current condition. In an 

April 26, 2013 report, Dr. Swartz stated that he had reviewed the medical evidence and statement 

of accepted facts and performed a physical examination. A physical examination revealed 

tenderness in the left anterior shoulder, a negative O’Brien’s test, negative impingement test, 

positive Abbott-Summerfield test, positive left shoulder Speed’s test, intact bilateral upper 

extremity sensation, and left knee lateral tenderness, pain with left knee patellofemoral 

compression. Range of motion for the left shoulder included 40 degrees extension, 145 degrees 

flexion, 175 degrees abduction, 60 degrees internal rotation, 90 degrees external rotation, and 30 

degrees adduction. Dr. Swartz noted that appellant had mildly restricted left shoulder motion, no 

left upper extremity atrophy, normal bilateral upper extremity strength, normal bilateral knee 

 2

 Docket No. 10-736 (issued January 26, 2011). 

3

 On February 10, 2005 appellant, then a 48-year-old temporary cook, filed a traumatic injury claim alleging that 

on that day she injured her left shoulder and left knee when she slipped and fell on ice. OWCP accepted the claim 

for left shoulder/arm strain and left knee contusion and placed her on the periodic rolls for temporary total disability. 
3

range of motion, no left thigh or calf atrophy, normal bilateral knee quadriceps strength, and left 

knee retropatellar crepitus, which was attributable to patellar chondromalica. Based on his 

examination, he opined that there was no evidence supporting that she continued to have 

residuals or disability due to her accepted February 10, 2005 slip and fall. Dr. Swartz concluded 

that the left knee chondromalacia degenerative arthritic changes were a preexisting condition 

based on a February 16, 2005 x-ray interpretation, which showed patellofemoral joint and medial 

compartment arthritis. As to the left shoulder, he related that a September 30, 2005 report noted 

AC joint changes in a magnetic resonance imaging (MRI) scan, which he opined was a 

preexisting condition, and that the rotator cuff tendinitis might be related to that condition. 

Dr. Swartz opined that it was questionable that appellant’s slip and fall would have produced 

long-term disability due to either knee or left shoulder conditions. He attributed her left shoulder 

pain as due to an irritation of the rotator cuff or supraspinatus, which he indicated that was not 

unusual particularly in a middle-aged person and her age at the time of injury was 48. In 

concluding, Dr. Swartz concluded that appellant had no disability or residuals at this time and is 

capable of performing the job offered by the employing establishment. 

In a May 9, 2013 report, Dr. Barry M. Schultz, a treating Board-certified internist, 

diagnosed left shoulder impingement syndrome and bilateral knee osteoarthritis, greater on the 

left. A physical examination revealed tenderness on palpation over bilateral paraspinal muscles, 

tenderness directly on palpation over the left AC joint, full active shoulder range of motion, 

tenderness on palpation of the knee lateral joint line, and full knee active range of motion. 

On October 4, 2013 OWCP issued a notice proposing to terminate appellant’s 

compensation and medical benefits. 

In a letter dated October 14, 2013, appellant disagreed with the proposal to terminate her 

benefits. She denied that she had ever had or been diagnosed with a preexisting condition prior 

to Dr. Swartz’ report. Appellant noted that she felt the examination by Dr. Swartz had been 

more like an interrogation. She also disagreed with his conclusion that her condition had 

resolved within three to six months of the injury. 

By decision dated November 12, 2013, OWCP finalized the termination of appellant’s 

compensation benefits. It found Dr. Swartz’ opinion constituted the weight of the evidence 

establishing that she no longer had any residuals or disability due to her accepted employment 

injury. 

In a letter dated November 18, 2013, appellant’s counsel requested a telephonic hearing 

before an OWCP hearing representative, which was held on May 8, 2014. 

By decision dated July 23, 2014, the hearing representative affirmed the termination of 

appellant’s compensation benefits. 

LEGAL PRECEDENT 

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

modification or termination of an employee’s benefits.4

 After it has determined that an 

 4 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 
4

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.5 OWCP’s burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.6

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

entitlement for disability.7

 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.8

ANALYSIS 

OWCP accepted appellant’s claim for shoulder/arm strain and knee contusion. By 

decision dated November 12, 2013, it terminated her compensation and medical benefits. 

OWCP found that the weight of the evidence rested with the opinion of Dr. Swartz, an OWCP 

referral physician, who concluded that appellant no longer had any disability or residuals due to 

the accepted February 10, 2005 employment injury. An OWCP hearing representative affirmed 

the November 12, 2013 decision on July 23, 2014. 

The Board finds that OWCP met its burden of proof to terminate appellant’s 

compensation benefits based on the opinion of Dr. Swartz, an OWCP referral physician, who 

reviewed the history of her employment injury, medical treatment, and the statement of accepted 

facts concerning the left shoulder/arm strain and left knee contusion. Dr. Swartz reported 

essentially normal findings on physical examination and noted no objective evidence of the 

accepted employment conditions. He opined that appellant no longer had any residuals or 

disability due to her accepted February 10, 2005 employment injury. Dr. Swartz found that the 

February 16, 2005 x-ray interpretation showed patellofemoral joint and medial compartment 

arthritis and September 30, 2005 MRI scan showed left shoulder AC joint changes, which he 

opined showed appellant had preexisting conditions. He found it was questionable that the slip 

and fall would have produced longer term disability to either her knee or left shoulder. 

Dr. Swartz concluded that appellant’s current condition and disability were due to her preexisting 

conditions and unrelated to the accepted accident. 

The weight of the medical opinion is determined by the opportunity for and thoroughness 

of examination, the accuracy and completeness of the physician’s knowledge of the facts of the 

case, the medical history provided, the care of analysis manifested and the medical rationale 

expressed in support of stated conclusions.9

 Dr. Swartz fully discussed the history of injury and 

explained that there were no objective findings to establish that appellant had any continuing 

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

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

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

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

9 See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996). 
5

employment-related residuals or disability. The Board finds that his opinion is detailed, well 

rationalized, and based upon a complete and accurate history. The Board finds that Dr. Swartz’ 

opinion represents the weight of the medical evidence and establishes that appellant no longer 

has any residuals or disability from her accepted employment conditions of left shoulder/arm 

strain and left knee contusion. OWCP has met its burden of proof to terminate compensation. 

It is appellant’s burden to provide rationalized medical evidence sufficient to establish 

causal relation for conditions not accepted by OWCP. It is not OWCP’s burden to disprove any 

such relationship.10 Dr. Fish diagnosed bilateral knee pain and AC joint arthritis and pain. He 

failed to provide any rationale explaining how the diagnosed conditions of bilateral knee pain 

and AC joint arthritis and pain or left shoulder impingement syndrome were caused or 

aggravated by appellant’s employment injury. The Board has held that reports lacking medical 

rationale are of limited probative value.11 Dr. Schultz diagnosed left shoulder impingement 

syndrome and bilateral knee osteoarthritis, greater on the left. He did not provide an 

employment injury history or provide an opinion on the cause of these conditions. The reports 

from Drs. Fish and Schultz are insufficient to establish that she sustained the bilateral knee pain, 

AC joint arthritis and pain, left shoulder impingement syndrome, and bilateral knee 

osteoarthritis, due to the February 10, 2005 employment injury.12

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based 

on the findings and reasons stated above, the Board finds that the counsel’s arguments are not 

substantiated.

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 OWCP properly terminated appellant’s compensation for wage-loss 

and medical benefits effective November 12, 2013 on the grounds that she no longer had any 

residuals or disability causally related to her accepted employment-related injuries. 

 10 Alice J. Tysinger, 51 ECAB 638 (2000). 

11 T.F., 58 ECAB 128 (2006); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006). 

12 D.U., Docket No. 10-144 (issued July 27, 2010); Richard A. Neidert, 57 ECAB 474 (2006). 
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ORDER 

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

Compensation Programs dated July 23, 2014 is affirmed. 

Issued: February 26, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board