United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 16-1706 

Issued: March 20, 2017 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 24, 2016 appellant, through counsel, filed a timely appeal from a March 14, 

2016 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. 

ISSUE 

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

wage-loss compensation and medical benefits, effective March 9, 2014. 

 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

FACTUAL HISTORY 

On August 13, 2004 appellant, then a 44-year-old clerk, filed an occupational disease 

claim (Form CA-2) asserting that she developed tendinitis of her left elbow and hand as a result 

of constant repetitive motion of feeding mail into a canceling machine. She first became aware 

of her condition on June 20, 2004 and realized its relation to her employment on 

August 11, 2004. OWCP accepted appellant’s claim for bilateral lateral epicondylitis. Appellant 

stopped work on June 20, 2004 and did not return.3 

Appellant came under the treatment of Dr. Ignatius D. Roger, a Board-certified 

orthopedist, from September 24 to December 7, 2001. Dr. Roger noted positive Tinel’s sign and 

pronounced atrophy on the bilateral wrists and hands. In reports dated June 22 and November 3, 

2004, he treated appellant for injuries sustained to both arms on June 20, 2004. Appellant 

reported repetitively using both upper extremities on the job when she experienced swelling of 

the left lateral epicondylar region. Dr. Roger noted that her symptoms worsened and she was 

forced to stop work on August 16, 2004. He noted clinical findings consistently disclosed pain at 

both lateral epicondyles with pain on resistive carpal dorsiflexion, edema at both lateral 

epicondyles. Dr. Roger diagnosed bilateral lateral epicondylitis and recommended tennis elbow 

splints, therapy and anti-inflammatory medications. 

Thereafter, in the course of developing the claim, OWCP referred appellant to several 

second opinion physicians. 

On August 3, 2009 Dr. Roger noted that appellant had been under his care since 1996 for 

bilateral lateral epicondylitis and carpal tunnel syndrome. He opined that her conditions were 

causally related to repetitive manual activities as a flat sorter since 1988. Dr. Roger advised that 

electrodiagnostic studies of March 2009 confirmed right carpal tunnel syndrome and the lateral 

epicondylitis was confirmed with clinical findings. He noted positive findings on examination 

and opined that the objective findings were causally related to repetitive manual activity required 

by appellant at work. Dr. Roger advised that due to the clinical findings she was unable to return 

to work in a capacity requiring repetitive manual activity. Appellant declined carpal tunnel 

release surgery. 

On November 14, 2011 appellant was referred for a functional capacity evaluation which 

was performed on November 26, 2011. The evaluation revealed that she could work in the 

physical demand level of sedentary full time. 

On November 22, 2013 OWCP referred appellant to Dr. Leon Sultan, a Board-certified 

second opinion orthopedist, to determine if the accepted conditions had resolved. In a 

December 9, 2013 report, Dr. Sultan indicated that he reviewed the records and provided results 

on examination. He found no muscle atrophy involving hands, grip strength was strong 

bilaterally, pinch mechanism was intact, sensory testing in both hands was preserved, and 

superficial Tinel’s and Phalen’s signs bilaterally. Examination of the elbows revealed no 

 3

 On June 10, 1996 appellant filed a claim, assigned File No. xxxxxx954, which was accepted for bilateral carpal 

tunnel syndrome and a ganglion condition of the right wrist. On May 1, 1997 she filed a claim that was accepted for 

right carpal tunnel syndrome, assigned File No. xxxxxx260. 
3

abnormalities and subjective soreness over the medial elbows. Dr. Sultan noted that the 

orthopedic examination did not confirm any objective findings to indicate any ongoing bilateral 

carpal tunnel syndrome or bilateral elbow epicondylitis. He opined that appellant’s bilateral 

upper extremity condition had resolved and that she was capable of performing her date-ofinjury job as a clerk. Dr. Sultan advised that she did not require any additional medical care to 

treat her work-related injuries, her overall prognosis was favorable, and her potential for 

reemployment in the future was favorable. He indicated that there were no other conditions 

which would prevent appellant from returning to full-time work. Dr. Sultan noted that she had 

reached maximum medical improvement. In a work capacity evaluation, he noted that appellant 

could return to her usual job full time with restrictions of lifting between 20 and 50 pounds. 

On January 15, 2014 OWCP proposed to terminate all wage-loss compensation and 

medical benefits, finding that Dr. Sultan’s December 9, 2013 report was the weight of the 

evidence and established no continuing residuals of appellant’s work-related conditions. 

In a February 12, 2014 statement, counsel disagreed with the proposed termination and 

asserted that there was a conflict in medical opinion between appellant’s physician, Dr. Roger, 

and OWCP referral physician. In a report dated August 19, 2013, Dr. Roger noted having treated 

appellant since 1996 for bilateral lateral epicondylitis, extensor tenosynovitis of both arms and 

bilateral carpal tunnel syndrome. He opined that these conditions were causally related to her 

repetitive manual work activities. Dr. Roger noted that appellant made several attempts to return 

to work in the past with exacerbation of her symptoms. He noted treating her on August 5, 2013 

and at that time there was diffuse hypoesthesia of both hands including the median and ulnar 

distributions, the elbow flexion test, Tinel’s sign and Phalen’s sign were positive bilaterally. 

Dr. Roger advised that, given the chronic gradually progressive course, he did not expect 

appellant would be able to return to work. 

On February 18, 2014 OWCP requested Dr. Sultan to review the job description and 

clarify his work restrictions. Dr. Sultan had opined that appellant’s work-related conditions had 

resolved yet he also provided that she had restrictions on lifting between 20 and 50 pounds 

occasionally. 

In a decision dated March 3, 2014, OWCP terminated appellant’s compensation benefits 

effective March 9, 2014. It based its decision on the reports of the second opinion physician 

Dr. Sultan. OWCP provided him with appellant’s full-duty position description and a medical 

report from Dr. Roger dated August 19, 2013 and asked for clarification with respect to any 

restrictions and limitations appellant may require. In its decision, it referenced a February 18, 

2014 addendum report in which Dr. Sultan opined that there were no objective findings of 

ongoing carpal tunnel syndrome or bilateral elbow epicondylitis.4

 Dr. Sultan advised that 

restrictions on handling occasionally between 20 and 50 pounds at a time were due to appellant’s 

age, gender, and body type. 

On June 26, 2014 appellant requested reconsideration. Appellant, through counsel, 

asserted that OWCP had finalized the termination of benefits based on an addendum report from 

the second opinion physician, Dr. Sultan, without providing a copy of the addendum report to 

 4

 The February 18, 2014 addendum report is not in the case record before the Board. 
4

appellant or counsel. Counsel asserted that OWCP, by failing to provide appellant and counsel 

with a copy of the addendum report from Dr. Sultan, rendered the termination of benefits 

procedurally improper. He indicated that benefits must be reinstated retroactively to the date of 

the improper termination. 

Appellant submitted an April 1, 2014 report from Dr. Roger who diagnosed bilateral 

lateral epicondylitis, extensor tenosynovitis of both upper extremities, and bilateral carpal tunnel 

syndrome and opined that these conditions were disabling with respect to her vocational 

activities. On February 3, 2014 Dr. Roger noted positive findings on examination and opined 

that she had remained unable to return to work due to limitations with respect to her ability to the 

use of her hands. He noted that the restrictions were permanent and he did not believe that 

appellant would be able to resume her vocational duties. 

In a decision dated July 15, 2014, OWCP denied modification of the decision dated 

March 3, 2014. 

On December 12, 2014 appellant appealed the July 15, 2014 OWCP decision to the 

Board. In an order dated May 26, 2015, the Board remanded her case to OWCP. The Board 

instructed OWCP to consolidate her claims for bilateral carpal tunnel syndrome and a ganglion 

condition of the right wrist, File No. xxxxxx954 and right carpal tunnel syndrome, File 

No. xxxxxx260 as correct adjudication depended on cross-referencing between files.5

 

Appellant submitted a June 8, 2015 report from Dr. Roger, in which he noted paresthesias 

in both hands, twitching in the right arm, and tremors. Dr. Roger noted findings of diminished 

sensation in the median distribution of both hands, positive bilateral carpal Tinel’s sign, and 

paresthesias bilaterally with Phalen’s maneuver. He diagnosed chronic bilateral carpal tunnel 

syndrome and tendinitis. 

In a decision dated March 14, 2016, OWCP terminated appellant’s medical benefits and 

wage-loss compensation effective March 9, 2014 as the weight of the medical evidence 

established that she had no residuals of the accepted work-related conditions. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation benefits.6

 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.7

 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 

 5 S.R., Docket No. 15-0409, Order Remanding Case (issued May 26, 2015). 

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

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

claimant no longer has residuals of an employment-related condition, which requires further 

medical treatment.8

Under FECA, when employment factors cause an aggravation of an underlying condition, 

the employee is entitled to compensation for the periods of disability related to the aggravation. 

When the aggravation is temporary and leaves no permanent residuals, compensation is not 

payable for periods after the aggravation has ceased, even if the employee is medically 

disqualified to continue employment because of the effect work factors may have on the 

underlying condition.9 

Title 20 of the Code of Federal Regulations § 10.540 provides: “When and how is 

compensation reduced or terminated? (a) Except as provided in paragraphs (c), (d), and (e) of 

this section, where the evidence of record establishes that compensation should be either reduced 

or terminated, OWCP will provide the beneficiary with written notice of the proposed action and 

give him or her 30 days to submit relevant evidence or argument to support entitlement to 

continued payment of compensation (b). Notice provided under this section will include a 

description of the reasons for the proposed action and a copy of the specific evidence upon which 

OWCP is basing its determination.”10

ANALYSIS 

OWCP accepted bilateral lateral epicondylitis as a result of appellant’s work feeding mail 

into a canceling machine. Appellant stopped work on June 20, 2004 and did not return. OWCP 

terminated her compensation effective March 9, 2014 based on Dr. Sultan’s December 9, 2013 

and February 18, 2014 reports. 

OWCP terminated appellant’s FECA benefits based on Dr. Sultan’s reports dated 

December 9, 2013 and February 18, 2014. A review of the record reveals that the February 18, 

2014 addendum report from Dr. Sultan is not in the case record and the record does not 

substantiate that the February 18, 2014 report was in fact provided to appellant and counsel. As 

such OWCP has failed to comply with the governing regulations and its procedures.11 Therefore, 

the Board finds the March 14, 2016 decision affirming the termination of appellant’s medical 

and compensation benefits effective March 9, 2014 was in error and must therefore be reversed. 

On appeal counsel asserts that OWCP failed to meet its burden of proof to terminate 

appellant’s compensation and medical benefits because OWCP finalized the termination of 

benefits based in part on a February 18, 2014 addendum report from the second opinion 

physician, Dr. Sultan, without providing a copy to appellant or counsel. Counsel asserted that, 

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

9 Raymond W. Behrens, 50 ECAB 221 (1999). 

10 See 20 C.F.R. § 10.540; see also Federal (FECA) Procedure Manual, Part 2 -- Disallowances, Regulatory 

Provisions, Chapter 2.1400.2(a)-(b) (February 2013). 

11 Id. 
6

by failing to provide appellant and counsel with a copy of the addendum report from Dr. Sultan, 

termination was improper. 

As noted above, OWCP regulations12 and procedures13 provide that, where the evidence 

establishes that compensation should be either reduced or terminated, OWCP will provide the 

beneficiary with written notice of the proposed action and give him or her 30 days to submit 

relevant evidence or argument to support entitlement to continued payment of compensation. 

This includes a description of the reasons for the proposed action and a copy of the specific 

evidence upon which OWCP is basing its determination. 

CONCLUSION 

The Board finds that OWCP has not met its burden of proof to terminate benefits 

effective March 9, 2014. 

ORDER 

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

Compensation Programs dated March 14, 2016 is reversed. 

Issued: March 20, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 See id. at § 10.540. 

13 Supra note 10 at Chapter 2.1400.2(a)-(b) (February 2013).