United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.F., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

FAYETTEVILLE NORTH CAROLINA 

MEDICAL CENTER, Fayetteville, NC, Employer 

__________________________________________ 

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Docket No. 16-0393 

Issued: June 24, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On December 29, 2015 appellant filed a timely appeal from a July 2, 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. 

ISSUE 

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

medical benefits effective July 2, 2015 as she no longer had any residuals or disability causally 

related to her accepted employment injuries. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 14, 2011 appellant, then a 44-year-old medical technician, filed a 

traumatic injury claim (Form CA-1) alleging that she hurt her right shoulder, arm, hand, and 

neck as a result of performing her repetitive work duties on that day. On November 15, 2011 she 

stopped work. 

By decision dated February 24, 2012, OWCP denied appellant’s claim as she did not 

submit any medical evidence as requested to establish a diagnosed medical condition causally 

related to the accepted employment incident. 

A February 16, 2012 medical report from Dr. Carolyn M. Sampson, a Board-certified 

family practitioner, described findings on physical examination, reviewed diagnostic test results, 

and diagnosed right rotator cuff tear, bursitis, and tendinitis. 

On March 6, 2012 OWCP accepted appellant’s claim for right shoulder rotator cuff 

syndrome and allied disorders. 

In a May 2, 2012 report, Dr. David Berkoff, Board-certified in emergency medicine, 

noted appellant’s treatment for her right shoulder pain, provided examination findings, and 

diagnosed a known partial rotator cuff tear at the right supraspinatus with biceps tendinitis and 

acromioclavicular (AC) arthrosis. He referred appellant for an arthroscopic surgery evaluation. 

On September 8, 2012 an OWCP medical adviser reviewed Dr. Berkoff’s May 2, 2012 

findings and opined that appellant had impingement syndrome with overgrowth at the AC joint 

that had resisted conservative treatment. The medical adviser recommended authorizing the 

proposed arthroscopic right shoulder rotator cuff repair and revision of the right collar bone, 

which were performed on October 9, 2012. 

By letter dated October 2, 2012, OWCP expanded the accepted conditions to include 

right shoulder AC and upper arm sprain. On October 4, 2012 it authorized arthroscopic right 

rotator cuff repair and right revision of the collar bone that was performed on October 9, 2012. 

Appellant remained out of work. On January 15, 2015 OWCP referred her, together with 

a statement of accepted facts and the medical record, to Dr. Chason S. Hayes, a Board-certified 

orthopedic surgeon, for a second opinion to determine the extent of her employment-related 

disability and work capacity. 

In an April 10, 2015 report, Dr. Hayes described appellant’s history of injury and medical 

treatment. On physical examination of the cervical spine, he found tenderness with a fairly 

limited range of motion. Appellant had 70 degrees of flexion, 40 degrees of extension, 45 

degrees of right lateral flexion, 40 degrees of left lateral flexion, 80 degrees of right rotation, and 

80 degrees of left axial rotation. Dr. Hayes found normal cervical lordosis, no deformity or 

scoliosis, normal reflexes, normal light touch sensation to both upper extremities, 5/5 right 

shoulder external rotation, and 5/5 left shoulder external rotation and a normal neurological 

examination. He reported a normal gait and no surgical scars, skin lesions, lymphangitis, 

lymphadenopathy, masses, localized swelling, or radial pulse. 
3

On right shoulder examination, Dr. Hayes found no tenderness, clinical deformity, 

scapual winging, or crepitus. He provided range of motion measurements which included 170 

degrees of forward flexion, 170 degrees of abduction, 80 degrees of external rotation, and 

internal rotation to T10. Dr. Hayes reported negative results for the following tests: 

impingement, Hawkins, crossed arm, O’Brien, supination, stability, apprehension, load and shift, 

sulcus sign, lift off, drop arm, Spurling, Spped, and Adson. There was no clinical deformity, 

scapular winging, massess, swelling, crepitus, or lymphangitis. Muscle strength testing of 

external and internal rotation, forward elevation, and abduction were each 5/5. Sensation was 

intact to light touch. Appellant had a well-healed surgical scar. Dr. Hayes diagnosed cervical 

radicular pain and shoulder pain. He advised that appellant appeared to have some residual 

symptoms from cervical radicular pain that was probably due to cervical degenerative disc 

disease. Appellant appeared to have an excellent result status post right shoulder arthroscopy 

and biceps tenodesis. 

Dr. Hayes responded “none” to the question of what objective findings showed that right 

rotator cuff syndrome of the shoulder injury continued to be medically present and disabling. He 

responded “yes” that this condition had resolved. Dr. Hayes attributed appellant’s prolonged 

disability to lack of understanding of the workers’ compensation process. Appellant was afraid 

that she may cause additional injuries to her shoulder and neck. She was also fearful of returning 

to work and having pain. Appellant was severely deconditioned and out of shape. Dr. Hayes 

related that she continued to have cervical radiculopathy symptoms, but opined that she was 

capable of performing her regular duties as a medical technician eight hours a day with no 

restrictions. Appellant was not disabled from work. Dr. Hayes recommended a functional 

capacity evaluation (FCE) to determine her restrictions as she was severely deconditioned, which 

could limit her ability to work. He did not anticipate permanent restrictions as appellant was 

motivated that she could fully return to her preinjury strength and status. Dr. Hayes 

recommended continued physical therapy and a home traction unit, a magnetic resonance 

imaging (MRI) scan and possible epidural steriod injection for the cervical spine. He concluded 

that appellant would reach maximum medical improvement from the November 14, 2011 

employment injury after completion of this treatment. In an accompanying work capacity 

evaluation (Form OWCP-5c), Dr. Hayes indicated that she could perform her usual job eight 

hours a day with no restrictions. 

By notice dated May 13, 2015, OWCP proposed to terminate wage-loss compensation 

and medical benefits as Dr. Hayes’ report found that she had no continuing residuals or disability 

due to her accepted employment injuries. It afforded appellant 30 days to submit additional 

evidence or argument regarding the proposed termination. 

In letters dated May 20 and June 4, 2015, appellant disagreed with the proposed 

termination and submitted medical reports. She contended that Dr. Hayes’ report was 

insufficient to meet OWCP’s burden to terminate her compensation benefits as his report did not 

match his examination findings. Appellant asserted that she had pain, numbness, and tightness 

in her right arm when he asked her to move her arm. After these exercises, Dr. Hayes talked 

about adjusting to her disability through exercise. He did not perform any other physical tests or 

examination. Appellant alleged that Dr. Hayes made incorrect statements in his report and did 

not document her symptoms. She asserted that the OWCP-5c form had expired according to the 

Office of Management and Budget number on his report dated October 31, 2014. 
4

Appellant submitted a December 17, 2014 FCE report from Dr. R. Alexander Creighton, 

an attending Board-certified orthopedic surgeon, who found that appellant could perform 

medium work in a restricted work plan. Her occupation required her to function in a medium 

category. Dr. Creighton noted the restrictions and determined that, although appellant could 

function at a medium level, a nursing position in a clinic setting rather than an inpatient setting 

would place her in a light work category with less stress on her right arm. In a May 27, 2015 

work report, he diagnosed status post right shoulder surgery. Dr. Creighton advised that 

appellant could perform full duty with no restrictions and that she could perform limited 

overhead lifting and work in a medium category. In a June 2, 2015 report, he diagnosed right 

shoulder partial thickness rotator cuff tear, superior labral tear, and AC arthritis. Dr. Creighton 

advised that appellant had reached maximum medical improvement regarding her accepted 

employment injury and right shoulder surgery. He recommended vocational rehabilitation to 

return to a medium work category of 40 hours a week. 

By decision dated July 2, 2015, OWCP finalized the termination of appellant’s wage-loss 

compensation and medical benefits effective that day. It found that the weight of the medical 

opinion evidence rested with Dr. Hayes’ April 10, 2015 report, which opined that she no longer 

had any employment-related residuals or disability. 

LEGAL PRECEDENT 

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

termination or modification of an employee’s benefits.2 It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.3 

The burden of proof includes the necessity of furnishing rationalized medical opinion evidence 

based on a proper factual and medical background.4 The right to medical benefits for an 

accepted condition is not limited to the period of entitlement for disability compensation.5 To 

terminate authorization for medical treatment, OWCP must establish that appellant no longer has 

residuals of an employment-related condition, which require further medical treatment.6

ANALYSIS 

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

compensation and medical benefits as of July 2, 2015. OWCP accepted that she sustained right 

shoulder rotator cuff syndrome, right shoulder allied disorders, and right shoulder AC and upper 

arm sprain while in the performance of duty on November 14, 2011. It authorized arthroscopic 

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

3 Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 

ECAB 541 (1986). 

4 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

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

6 A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K. 

Guesford, 53 ECAB 727 (2002). 
5

right rotator cuff repair and right revision of the collar bone performed on October 4, 2012. 

OWCP terminated appellant’s wage-loss compensation and medical benefits based on the 

medical opinion of Dr. Hayes, a second opinion physician. 

In his April 10, 2015 report, Dr. Hayes described the November 14, 2011 employment 

injury and reviewed appellant’s medical treatment. He provided essentially normal physical and 

neurological examination findings regarding the cervical spine. Dr. Hayes also found normal 

findings on examination of the right shoulder. He diagnosed cervical radicular pain and shoulder 

pain. Dr. Hayes advised that appellant appeared to have some residual symptoms from cervical 

radicular pain that was probably due to degenerative disc disease in her cervical spine. Appellant 

appeared to have an excellent result status post right shoulder arthroscopy and biceps tenodesis. 

Dr. Hayes opined that appellant’s accepted work-related right shoulder rotator cuff 

syndrome had resolved. He explained that her prolonged disability was due to her lack of 

understanding of the workers’ compensation process. Dr. Hayes noted that appellant was afraid 

that she could cause additional injuries and pain to her shoulder and neck if she returned to work. 

He indicated that she was severely deconditioned and out of shape. While Dr. Hayes noted that 

appellant continued to have symptoms of cervical radiculopathy, this condition has not accepted 

by OWCP.7

 He advised that she could perform her regular duties as a medical technician eight 

hours a day with no restrictions. Dr. Hayes found that appellant had an excellent result status 

post right shoulder arthrsocopsy and biceps tenodesis. He recommended a FCE to determine her 

lifting restrictions because she was severely deconditioned, which could limit her ability to return 

to work. Dr. Hayes did not anticipate permanent restrictions as appellant was motivated that she 

could fully return to her preinjury strength and status. He recommended further medical 

treatment for her current nonaccepted cervical spine condition and advised that she would reach 

maximum medical improvement of the November 14, 2011 employment injury after completion 

of this treatment. 

The Board finds that Dr. Hayes’ report represents the weight of the medical evidence and 

that OWCP properly relied on his report in terminating appellant’s wage-loss compensation and 

medical benefits for the accepted condition on July 2, 2015. Dr. Hayes’ opinion is based on a 

proper factual and medical history as he reviewed the statements of accepted facts and her prior 

medical treatment. He also related his comprehensive examination findings in support of his 

opinion that appellant no longer had any residuals or disability causally related to the accepted 

traumatic right shoulder and right arm injuries. 

The Board finds that Dr. Hayes’ opinion that appellant had recovered from the 

employment injuries represents the weight of the medical evidence and the additional medical 

evidence submitted is insufficient to create a conflict in opinion regarding whether she had 

continuing residuals or disability related to the accepted injuries. Therefore, OWCP properly 

terminated her compensation effective July 2, 2015 based on his opinion. 

 7 See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted or approved by OWCP as due to an 

employment injury, the claimant bears the burden of proof to establish that the condition is causally related to the 

employment injury). 
6

The Board finds that the remaining evidence submitted by appellant prior to the 

termination of her compensation is insufficient to show that she had any remaining work-related 

residuals or disability. Dr. Creighton’s reports agreed that she had reached maximum medical 

improvement regarding her November 14, 2011 employment injuries and that she could return to 

full-time, medium-level work. He did not opine that appellant had any continuing residuals or 

disability due to her accepted employment injuries. While Dr. Creighton diagnosed right 

shoulder partial thickness rotator cuff tear, superior labral tear, and AC arthritis, he did not 

attribute the diagnosed conditions to the accepted employment injuries. 

The Board finds that Dr. Hayes’ opinion that appellant had recovered from the 

employment injuries represents the weight of the medical evidence and the additional medical 

evidence submitted is insufficient to create a conflict in opinion regarding whether she had 

continuing residuals or disability related to the accepted injuries. Therefore, OWCP properly 

terminated her compensation effective July 2, 2015 based on his opinion. 

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 wage-loss compensation and 

medical benefits effective July 2, 2015 as she no longer had any residuals or disability causally 

related to her accepted employment injury. 
7

ORDER 

IT IS HEREBY ORDERED THAT the July 2, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: June 24, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board