United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 16-1030 

Issued: September 1, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 19, 2016 appellant, through counsel, filed a timely appeal from a December 9, 

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 over the merits of this case. 

ISSUES 

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

wage-loss and medical compensation benefits effective May 21, 2015 as his accepted right 

 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

shoulder bursitis and cervical stenosis had ceased without residuals; and (2) whether appellant 

established continuing residuals of the accepted right shoulder and cervical spine conditions on 

and after May 21, 2015. 

FACTUAL HISTORY 

OWCP accepted that on March 30, 2013 appellant, then a 57-year-old distribution 

machine clerk, sustained traumatic bursitis of the right shoulder when he stepped on a plastic 

strap and fell from a platform down three steps. He attempted to break his fall by extending his 

right arm. Appellant sought emergency room treatment on April 1, 2013. Dr. John Lawrie, an 

attending physician Board-certified in emergency and internal medicine, diagnosed traumatic 

bursitis of the right shoulder. Imaging studies of the right shoulder were within normal limits. 

Dr. Mikhail Azrilevich, an attending Board-certified internist, diagnosed status post occupational 

right shoulder injury with left knee pain.3

 Appellant accepted a modified-duty position on 

April 26, 2013. 

On May 20, 2013 Dr. Gupta diagnosed a right rotator cuff partial tear, and administered 

an injection. He prescribed physical therapy on June 17, 2013.4

 

On December 17, 2013 Dr. Mark D. Lazarus, an attending Board-certified orthopedic 

surgeon, performed arthroscopic debridement of the right shoulder labrum, subacromial 

decompression, and rotator cuff repair. OWCP authorized the procedure. 

Appellant received compensation on the supplemental rolls from December 14, 2013 to 

May 21, 2015. Dr. Lazarus found appellant able to perform full-time modified duty as of 

April 14, 2014, but appellant did not return to work. He continued to participate in physical 

therapy through November 2014. 

In a November 12, 2014 report, Dr. Dorota Gribbin an attending Board-certified 

physiatrist, diagnosed right shoulder pain and cervicalgia. On December 3, 2014 she noted 

obtaining electrodiagnostic studies showing right C5 radiculopathy and right carpal tunnel 

syndrome. Dr. Gribbin prescribed physical therapy on December 10, 2014, noting that appellant 

required further diagnostic studies on the cervical spine. She administered a cortisone injection 

on December 15, 2014. On December 29, 2014 Dr. Gribbin diagnosed cervical stenosis, right 

shoulder joint pain, cervicalgia, soft tissue pain in the right shoulder region, right carpal tunnel 

syndrome, and tension headache. She administered trigger point injections on January 30 and 

February 16, 2015.5

 3

 Dr. Sunny Gupta, an attending osteopathic physician Board-certified in family medicine and sports medicine, 

ordered a left knee x-ray on April 18, 2013, noting that appellant developed left knee pain after he fell at work on 

March 30, 2013. 

4

 A July 22, 2013 magnetic resonance imaging (MRI) scan showed a full-thickness tear of the supraspinatus 

tendon. 

5

 February 6, 2015 electromyography (EMG) and nerve conduction velocity (NCV) studies showed that 

appellant’s right carpal tunnel syndrome had resolved completely. 
3

A December 5, 2014 MRI scan showed a “large focal partial tear involving the 

supraspinatus tendon.” 

On January 16, 2015 OWCP obtained a second opinion from Dr. Robert A. Smith, a 

Board-certified orthopedic surgeon. Dr. Smith reviewed the medical record and a statement of 

accepted facts. On examination of the right upper extremity, he found full motion of the 

shoulder, satisfactory strength, and a normal neurologic examination. Dr. Smith diagnosed 

resolved traumatic bursitis and rotator cuff tear of the right shoulder, both completely 

ameliorated by the December 17, 2013 surgery. He noted that there “was never any accepted 

condition for this case with respect to [appellant’s] neck or neurological structures.” Dr. Smith 

explained that any “continued treatment, testing, work restrictions, or disability for the neck, 

radiculopathy, or carpal tunnel syndrome [were] not related to the March 30, 2013 incident, but 

to nonindustrial factors.” He opined that appellant had reached maximum medical improvement, 

and could return to full duty with no restrictions related to the accepted injuries. 

By notice dated March 4, 2015, OWCP advised appellant of its proposal to terminate his 

wage-loss compensation and medical benefits as the accepted right shoulder conditions had 

ceased without residuals, based on Dr. Smith’s opinion as the weight of the medical evidence. 

Appellant was afforded 30 days to submit evidence or argument. 

On March 12, 2015 OWCP expanded the claim to accept cervical spinal stenosis. 

In a March 18, 2015 letter, counsel asserted that Dr. Smith’s report could not represent 

the weight of the medical evidence as it predated OWCP’s acceptance of cervical spinal stenosis. 

Although Dr. Smith opined on January 16, 2015 that there were no accepted cervical spine or 

neurologic conditions, OWCP accepted cervical spinal stenosis on March 12, 2015. 

Appellant submitted March 2 and 16, 2015 reports from Dr. Gribbin finding improved 

right shoulder pain, right carpal tunnel syndrome, and cervical stenosis requiring additional 

treatment. In a March 23, 2015 report, Dr. Gribbin disagreed with Dr. Smith’s opinion that the 

accepted conditions had ceased. She explained that appellant’s right upper extremity pain was 

“directly associated with right-sided C5 radiculopathy” caused by the March 30, 2013 fall. 

In an April 1, 2015 letter, counsel contended that OWCP should expand the claim to 

accept C5 radiculopathy and find a conflict of medical opinion between Dr. Smith, for the 

government, and Dr. Gribbin, for appellant. He provided reports from Dr. Gribbin dated from 

April 22 to May 11, 2015, noting continuing right-sided cervical radiculopathy, treated with 

epidural injections. 

By decision dated May 21, 2015, OWCP terminated appellant’s wage-loss and medical 

compensation benefits effective that day, finding that the accepted right shoulder tendinitis and 

cervical stenosis had ceased without residuals. It accorded the weight of the medical evidence to 

Dr. Smith, finding that his opinion was based on a “complete, accurate, and consistent history 

covering both the factual and medical aspects of [his] case.” 

In a May 28, 2015 letter, counsel requested a hearing, held before an OWCP hearing 

representative on September 11, 2015. At the hearing, counsel asserted that Dr. Smith’s report 

could not represent the weight of the medical evidence as his opinion predated OWCP’s 
4

acceptance of cervical stenosis. Therefore, his conclusions were predicated on an incomplete 

factual medical history. He provided reports from Dr. Gribbin dated from May through 

August 2015 diagnosing right-sided cervical radiculopathy requiring additional treatment. 

By decision dated December 9, 2015, an OWCP hearing representative affirmed the 

May 21, 2015 decision. The hearing representative explained that Dr. Smith’s report was 

sufficient to meet OWCP’s burden of proof in terminating appellant’s compensation, as there 

were no disabling residuals of the shoulder injury “and he clearly states there is no causation of 

the cervical condition as a result of the March 30, 2013 injury.” The hearing representative 

found that OWCP “appropriately afforded the weight of the medical evidence to Dr. Smith, the 

Board-certified second opinion specialist. The hearing representative also remanded the case 

“for resolution of the conflicting correspondence concerning the cervical condition based on the 

medical evidence.” 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP has accepted a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.6 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation 

without establishing either that the disability has ceased or that it is no longer related to the 

employment.7

 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.8 

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

entitlement for disability.9 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.10 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained traumatic bursitis of the right shoulder when he 

fell down steps at work on March 30, 2013. On December 17, 2013 appellant underwent 

arthroscopic debridement of the right labrum, subacromial decompression, and rotator cuff 

repair. He received compensation for temporary total disability from December 14, 2013 to 

May 21, 2015. 

Dr. Gribbin, an attending Board-certified physiatrist, opined in reports beginning on 

November 12, 2014 that appellant’s continuing right upper extremity pain and paresthesias were 

caused by cervical radiculopathy sustained in the March 30, 2013 fall. OWCP obtained a second 

 6 Bernadine P. Taylor, 54 ECAB 342 (2003). 

7 Id.

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

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

10 Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003). 
5

opinion on January 16, 2015 from Dr. Smith, a Board-certified orthopedic surgeon, who opined 

that the accepted conditions had ceased without residuals, as there was “never any accepted 

condition for this case with respect to [appellant’s] neck or neurological structures.” However, 

on March 12, 2015 OWCP expanded the claim to accept cervical spinal stenosis, based on 

Dr. Gribbin’s opinion. 

By notice dated March 4, 2015 and finalized May 21, 2015, OWCP terminated 

appellant’s medical and wage-loss compensation benefits effective May 21, 2015. It accorded 

Dr. Smith’s opinion the weight of the medical evidence, asserting that it was based on a 

complete, accurate, factual, and medical history. Following a September 11, 2015 hearing, at 

which counsel contended that Dr. Smith’s opinion could not be based on a complete medical 

history as it predated OWCP’s acceptance of cervical stenosis, OWCP issued a May 9, 2015 

decision affirming the termination. However, the hearing representative also remanded the case 

“for resolution of the conflicting correspondence concerning the cervical condition.” 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss and medical compensation benefits. Dr. Smith’s opinion was not based on the 

complete medical history as available for OWCP at the time it rendered the May 21, 2015 

decision. OWCP expanded the claim to accept cervical stenosis on March 12, 2015, after 

Dr. Smith rendered his opinion on January 16, 2015. The Board notes that the record does not 

indicate that OWCP attempted to obtain an updated opinion from Dr. Smith that addressed 

resolution of the accepted condition of cervical stenosis. Therefore, the medical record and 

statement of accepted facts provided to Dr. Smith were incomplete. It is axiomatic that medical 

reports based on an incomplete or inaccurate history are of little probative value.11 Therefore, 

Dr. Smith’s opinion was an insufficient basis for terminating appellant’s compensation. OWCP 

failed to meet its burden of proof. The May 21, 2015 decision will be reversed, and the case 

returned to OWCP for reinstatement of all appropriate benefits. 

ISSUE 2 

As OWCP did not meet its burden of proof in terminating appellant’s wage-loss and 

medical compensation benefits, issue two regarding appellant’s burden of proof in establishing 

continuing residuals after the termination, is moot. 

CONCLUSION 

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

wage-loss and medical compensation benefits effective May 21, 2015 as the accepted right upper 

extremity and cervical spine conditions had ceased without residuals. 

 11 Solomon Polen, 51 ECAB 341 (2000). 
6

ORDER 

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

Compensation Programs dated December 9, 2015 is reversed. 

Issued: September 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board