United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer 

__________________________________________ 

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Docket No. 16-0431 

Issued: October 12, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 7, 2016 appellant, through counsel, filed a timely appeal of an October 27, 

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 to consider the merits of the case. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

compensation benefits as of June 9, 2015; and (2) whether appellant has established that she had 

continuing disability caused by residuals of her accepted aggravation of left shoulder sprain and 

 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

aggravation of brachial radiculitis conditions following the termination of compensation benefits 

on June 9, 2015. 

FACTUAL HISTORY 

Appellant, then a 47-year-old distribution clerk on May 12, 2009, filed a traumatic injury 

claim (Form CA-1) alleging that on September 22, 2008 after grasping mail with both hands, she 

experienced pain in her hands, which radiated to her left shoulder, and caused a headache.3

 

On June 19, 2009 OWCP accepted her claim for aggravation of left shoulder sprain and 

aggravation of brachial radiculitis. It commenced payment of compensation for temporary total 

disability. Appellant received compensation benefits on the supplemental rolls paid retroactively 

to October 8, 2008 and on the periodic rolls as of October 15, 2009. 

In a report dated April 28, 2011, Dr. Mark A.P. Filippone, Board-certified in physical 

medicine and rehabilitation and appellant’s treating physician, asserted that her condition was 

unchanged and that her symptoms had persisted since his most recent reexamination of 

March 29, 2011. He noted on examination that both shoulders and upper arms hurt and that she 

was experiencing pain, guarding, and spasm in the cervical paraspinals. Dr. Filippone advised 

that appellant underwent an electromyogram (EMG), which showed evidence of partial 

denervation in the abductor pollicis brevis bilaterally, partial denervation in the mid-cervical 

dorsal rami bilaterally, and in muscles in the left upper extremity, which demonstrated mild 

partial denervation in muscles innervated by the left C5-7 cervical nerve roots. He opined that 

there was motor sensory and nerve conduction evidence of bilateral carpal tunnel syndrome and 

EMG evidence of partial denervation in muscles innervated by the mid cervical dorsal rami 

bilaterally; there was also EMG evidence of left C5-7 cervical radiculopathy. Dr. Filippone 

opined that all of these findings were consistent with the injuries she sustained while working for 

the employing establishment and that she continued to be totally disabled. 

In a January 27, 2012 report, Dr. Filippone reiterated that appellant continued to 

experience right shoulder and neck pain, that her condition was unchanged and that she remained 

totally disabled due to these conditions. 

In a report dated May 14, 2012, Dr. Filippone asserted that appellant was experiencing 

hot and burning neck pain, which he rated a 7.5 on a scale of 1 to 10 in intensity; he rated his left 

shoulder pain as a 7 on a scale of 1 to 10, radiating into the left arm and into the left fingers. He 

advised that appellant continued to be totally disabled. Dr. Filippone diagnosed disc herniations 

at C5-6 and C6-7; bulging disc at C4-5; and cervical radiculopathy; left shoulder partial 

thickness tear of the supraspinatus tendon; impingement of the rotator cuff; and glenohumeral 

joint effusion/fluid within the subdeltoid bursa. He opined that these conditions were directly 

and solely the result of the injuries she sustained while working for the employing establishment. 

In order to determine appellant’s current condition and ascertain whether she still 

suffered residuals from her accepted conditions, OWCP referred her for a second opinion 

 3

 Appellant had initially filed a notice of recurrence (Form CA-2a) on March 17, 2009 alleging a September 21, 

2008 recurrence of an October 22, 2003 injury. On May 28, 2009 OWCP informed appellant’s counsel that based 

on the description of the circumstances surrounding this injury claim, the claim would be processed as a claim for 

traumatic injury. 
3

examination with Dr. Kenneth P. Heist, an osteopath Board-certified in orthopedic surgery. In a 

June 13, 2012 report, Dr. Heist reviewed the medical history and the statement of accepted facts 

(SOAF), stated findings on examination and concluded that her accepted left shoulder bursitis 

and tendinitis conditions had resolved. He noted that appellant showed some restriction of 

motion in her left shoulder, neck, and lumbar spine, which he attributed to her preexisting 

conditions of degenerative spinal and joint disease. Dr. Heist opined that she was capable of 

returning to work eight hours a day with restrictions no lifting exceeding 20 pounds occasionally 

or 10 pounds frequently, and on lifting, carrying, pushing, pulling, or otherwise moving objects. 

OWCP found that there was a conflict in the medical evidence between Dr. Filippone and 

Dr. Heist, the second opinion physician, as to whether appellant still had residuals from her 

accepted left shoulder and neck conditions. It referred her to Dr. Ian B. Fries, Board-certified in 

orthopedic surgery, for an impartial medical examination. In a June 19, 2014 report, Dr. Fries 

found that appellant had fully recovered from her accepted left shoulder and neck conditions. He 

asserted that, while she had subjective findings of widespread, poorly defined tenderness of her 

head, neck, and shoulder girdles, she had no objective evidence of significant musculoskeletal or 

neurologic pathology; appellant had no signs of internal derangements of either shoulder and no 

provocative signs to confirm radiculopathy. Dr. Fries reported that she had very poor recall, 

which precluded him from depending on her for historical details; he also noted that her medical 

records were incomplete. Nevertheless, he found that there was sufficient evidence to find that 

she was no longer disabled due to the effects of her accepted conditions. Dr. Fries concluded 

that appellant had no residuals from her brachial radiculitis and left shoulder conditions and 

opined that she was physically capable of performing full duty at her date-of-injury position. 

On May 7, 2015 OWCP issued a notice of proposed termination of compensation to 

appellant. It found that the weight of the medical evidence, as represented by Dr. Fries’ 

impartial opinion, established that her accepted brachial radiculitis and left shoulder had ceased 

and that she had no work-related residuals stemming from these conditions. It allotted appellant 

30 days within which to submit additional evidence. Appellant did not respond within the 

allotted time. 

By decision dated June 9, 2015, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, finding that Dr. Fries’ impartial opinion represented the special weight of 

the medical evidence. 

On June 15, 2015 appellant, through her representative, requested a hearing before an 

OWCP Branch of Hearings and Review hearing representative, which was held on 

September 14, 2015. 

In reports dated June 4 and 11, 2015, received by June 19, 2015, Dr. Filippone expressed 

his disagreement with Dr. Fries’ opinion that appellant was capable of performing her preinjury 

job and essentially reiterated his previous findings and conclusions. He conceded that appellant 

had manifested certain “bizarre complaints” and symptom magnification, but opined that she was 

not a “malingering” patient. 

By decision dated October 27, 2015, an OWCP hearing representative affirmed the 

June 9, 2015 termination decision. 
4

LEGAL PRECEDENT 

Under FECA, once OWCP accepts a claim, it has the burden of justifying termination or 

modification of compensation benefits.4 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.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. To terminate authorization for medical treatment, OWCP must 

establish that a claimant no longer has residuals of an employment-related condition, which 

requires further medical treatment.7

 

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.8 For a conflict to arise the opposing physician’s viewpoints must be of “virtually 

equal weight and rationale.”9 Where OWCP has referred the case to an impartial medical 

examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well-reasoned and based upon a proper factual background, must be given special 

weight.10

ANALYSIS 

In this case, OWCP based its decision to terminate appellant’s compensation on the 

opinion of Dr. Fries, the impartial medical physician. The Board finds that OWCP met its 

burden of proof. 

While appellant’s treating physician, Dr. Filippone, continued to opine following 

physical examination that appellant was totally disabled; Dr. Heist, OWCP’s second opinion 

physician opined, following physical examination, that appellant could return to work with 

restrictions. OWCP properly determined that a conflict existed in the medical opinion evidence 

and referred appellant to Dr. Fries to determine her disability status.11 

On appeal, appellant’s counsel argues that Dr. Fries’ impartial medical report was vague, 

insufficiently rationalized, presented inaccurate conclusions regarding appellant’s ability to 

 4 Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000). 

5 Mary A. Lowe, 52 ECAB 223, 224 (2001). 

6 See Del K. Rykert, 40 ECAB 284 (1988). L.J., Docket No. 14-1682 (December 11, 2015). 

7 Id.; Leonard M. Burger, 51 ECAB 369 (2000). 

8

 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). 

9 Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 

10 Gary R. Sieber, 46 ECAB 215, 225 (1994). 

11 See supra note 9. 
5

perform her work duties and was based on an inaccurate SOAF. Counsel contends that because 

the June 17, 2013 SOAF did not specifically list all of the restrictions stemming from appellant’s 

prior work injury, which pertained to her upper extremities and neck, and because he noted that 

the medical records were incomplete, Dr. Fries’ report cannot carry the weight of medical 

evidence since it is based upon an inaccurate SOAF. He argues that Dr. Fries should have been 

made aware of the modified mail processing job that appellant was performing at the time of her 

2008 work injury to determine if she has residual disability. Appellant’s counsel notes that EMG 

testing performed on May 3, 2013 confirmed that she continued to suffer from left C5-7 

radiculopathies and that, during his physical examination, Dr. Fries noted that she had loss of 

motion in her neck and upper extremities and loss of strength and sensory deficiencies in the 

upper extremities. Lastly, counsel asserts that Dr. Fries was unable to quantify how much of 

appellant’s disability was attributable to each of her previous work-related injuries. He therefore 

argues that his report did not merit the special weight of a referee medical examiner. 

The Board does not accept counsel’s contentions. Dr. Fries was provided a SOAF 

describing the essential elements, including the accepted conditions, the job title and work 

history, and the relevant medical history. In his 31-page report, he fully addresses appellant’s 

job and medical history.12 Dr. Fries provided a thorough, exhaustive medical opinion based on 

his examination of appellant and provided findings based on his examination, the SOAF and her 

medical history. He concluded that she had no residuals from the only accepted conditions, 

brachial radiculitis, and aggravation of left shoulder strain, and opined that she was physically 

capable of performing full duty at her date-of-injury job. Dr. Fries reported that appellant had no 

objective evidence of significant musculoskeletal or neurologic pathology, with no signs of 

internal derangements of either shoulder and no provocative signs to confirm radiculopathy. He 

opined that she had fully recovered and was no longer totally disabled due to her accepted left 

shoulder and neck conditions. OWCP relied on Dr. Fries’ opinion in its June 9, 2015 decision, 

finding that appellant had no residual disability or impairment causally related to her accepted 

brachial radiculitis and left shoulder conditions. 

The Board finds that Dr. Fries’ impartial opinion negates a causal relationship between 

appellant’s continuing conditions and disability related to her employment. The medical 

evidence of record establishes that appellant no longer has any residuals from her accepted 

brachial radiculitis and left shoulder conditions.13 Dr. Fries’ opinion is sufficiently probative, 

rationalized, and based upon a proper factual background. Therefore, OWCP properly accorded 

his opinion the special weight of an impartial medical examiner.14 Accordingly, it properly 

 12 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.5 

(September 2009) and id. Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3(a)(4); see also 

D.C., Docket No. 16-0430 (issued August 29, 2016). 

13 The Board rejects counsel’s argument that Dr. Fries’ opinion is lacking in probative value because he did not 

consider appellant’s specific work restrictions stemming from her previous work injury and did not enumerate the 

degree of disability stemming from each of her work-related incidents. The question of whether appellant had any 

residual disability stemming from her accepted conditions is a medical question, to be determined by a physician. 

As OWCP’s impartial medical examiner, Dr. Fries was charged with determining whether she had any residuals 

stemming from her accepted left shoulder sprain and aggravation of brachial radiculitis conditions, based on the 

evidence of record. For the reasons noted in this decision, Dr. Fries’ findings in this regard are fully supported by 

the evidence of record and his conclusions are fully rationalized and sufficient to merit the special weight of an 

impartial medical examiner. 

14 Supra note 10. 
6

found that Dr. Fries’ impartial medical opinion negated a causal relationship between appellant’s 

current condition and her accepted brachial radiculitis and left shoulder conditions and that it 

represented the weight of the medical evidence in its June 9, 2015 termination decision.15

LEGAL PRECEDENT -- ISSUE 2 

Following a proper termination of compensation benefits, the burden of proof shifts back 

to the claimant to establish continuing employment-related disability.16 To establish a causal 

relationship between the condition, any attendant disability, 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 To prevail, the claimant must establish by the weight of the reliable, probative, and 

substantial evidence that he or she had an employment-related disability which continued after 

termination of compensation benefits.19 

ANALYSIS -- ISSUE 2 

The issue of whether appellant is still entitled to compensation for continuing disability 

and whether she continued to experience residuals from her accepted condition is a medical one, 

based on the medical evidence of record.20 While she submitted the June 4 and 11, 2015 reports 

from Dr. Filippone, these reports did not provide a probative medical opinion as to whether she 

was disabled or currently required medical treatment due to an employment-related condition; 

these reports merely restate one side of the conflict in medical evidence which was resolved by 

Dr. Fries’ opinion.21 Dr. Filippone did not provide a well-reasoned and sufficiently supported 

opinion that would vitiate OWCP’s June 9, 2015 determination that appellant did not have any 

employment-related disability or residuals stemming from her accepted brachial radiculitis and 

left shoulder conditions. Appellant did not provide a probative medical opinion as to whether 

she was disabled or currently required medical treatment due to an employment-related 

condition.22 For the reasons discussed above, OWCP’s hearing representative properly affirmed 

 15 See V.A., Docket No. 15-1073 (issued November 25, 2015). 

16 Id. 

17 Supra note 8. 

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

19 See J.A., Docket No. 15-0908 (issued August 6, 2015). 

20 Supra note 10. 

21 See H.P., Docket No. 15-0568 (issued September 14, 2015) (the submission of reports by physicians who were 

on one side of the conflict without more by way of rationale, were insufficient to create a new conflict in medical 

opinion to overcome the special weight properly accorded the impartial medical examiner). 

22 The Board notes that, in the event appellant believes that that a change in her work duties caused a worsening 

of his previously accepted work injury, she may file a claim for a recurrence of disability or a new occupational 

disease claim based on additional exposure at work for her new symptoms and need for additional medical 

treatment. 
7

the June 9, 2015 decision, which found that the special weight of the medical evidence was 

represented by Dr. Fries, the impartial medical examiner. 

A mere conclusion without the necessary medical rationale to explain how and why the 

physician believes that appellant still has residuals of the accepted condition is not sufficient to 

meet her burden of proof. The medical evidence must also include rationale explaining how the 

physician reached his conclusion.23 Appellant thus did not meet her burden of proof to establish 

continuing disability after June 9, 2015. The Board will affirm the hearing representative’s 

October 27, 2015 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 OWCP met its burden of proof to terminate appellant’s 

compensation benefits as of June 9, 2015. The Board further finds that she has not met her 

burden of proof to establish continuing employment-related disability after June 9, 2015. 

 23 See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the 

issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical 

rationale. 
8

ORDER 

IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 12, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board