United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.O., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Oakland, CA, Employer

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Docket No. 19-0472

Issued: August 15, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 27, 2018 appellant filed a timely appeal from a September 21, 2018 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
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ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective September 21, 2018, as she no longer had residuals 

or disability causally related to her accepted bilateral upper extremity conditions.

FACTUAL HISTORY

On October 25, 2010 appellant, then a 49-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging bilateral hand tendinitis, which she attributed to 

her employment duties including sweeping and pulling mail. She first became aware of her 

condition and realized that it resulted from her federal employment on June 2, 2010. On 

December 6, 2010 OWCP accepted appellant’s claim for bilateral shoulder, elbow, and hand 

sprains. Appellant received compensation for intermittent wage loss on the supplemental rolls. 

Beginning August 3, 2011, OWCP paid wage-loss compensation for temporary total 

disability. It subsequently placed appellant on the periodic compensation rolls effective 

October 23, 2011. Appellant continued to receive wage-loss compensation for temporary total 

disability through June 2017. For a brief period, OWCP reduced her wage-loss compensation for 

failure to accept a temporary, limited-duty assignment. However, it resumed payment for 

temporary total disability effective August 15, 2017. 

Appellant received medical treatment from Dr. Gary Martinovsky, Board-certified in 

anesthesiology and pain medicine. In a March 29, 2018 work status note, Dr. Martinovsky 

indicated that she was able to work with restrictions of: no lifting or carrying greater than 10 

pounds; no repetitive pushing or pulling greater than 10 pounds; no reaching, gripping, grasping, 

handling, and fingering; and no typing or writing. 

On April 5, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a copy of the record, to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, 

for a second opinion evaluation regarding the status of her work-related upper extremity conditions 

and work capacity. In a May 15, 2018 report, Dr. Swartz reviewed the SOAF and the medical 

evidence of record. He accurately described appellant’s employment duties and noted that her 

claim was accepted for bilateral shoulder, elbow, and hand strains. Upon examination of her

shoulders, Dr. Swartz observed tenderness in the acromioclavicular (AC) joint and anteriorly. He 

also noted medial tenderness in both elbows and wrists. Durkan test was positive in both wrists. 

Sensation examination was intact in both upper extremities. 

In response to OWCP’s questions, Dr. Swartz indicated that appellant had no residuals of 

her soft tissue strains that she sustained while performing her employment duties. He indicated 

that there were no examination findings or diagnostic testing results to support that her workrelated conditions were still active and required further medical treatment. Dr. Swartz noted that 

magnetic resonance imaging (MRI) scan reports were unremarkable, other than some early 

osteophyte formation, which were age related and not a result of appellant’s federal employment. 

He reported that she had conditions of minor spurring and degenerative changes in the shoulders, 

fibromyalgia, and myofascial pain syndrome, which were not related to her accepted employment

injury. Dr. Swartz indicated that there was no further need for treatment and completed a work 
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capacity evaluation form (OWCP-5c), which indicated that appellant could work with restrictions

including reaching above the shoulders; operating a vehicle for more than four hours; and pushing, 

pulling, and lifting 25 to 35 pounds for more than four hours. He related that her current physical 

restrictions were based on her chronic fibromyalgia, chronic myofascial pain syndrome, and the 

chronic early degenerative changes in her wrists and shoulders, and explained that these physical 

restrictions were due to her nonemployment-related conditions. 

OWCP received a May 10, 2018 examination note by Leonid Pugach, a certified physician 

assistant. Mr. Pugach related appellant’s complaints of pain in the bilateral shoulders, which was 

aggravated by reaching and repetitive work. He provided examination findings and diagnosed 

unspecified bilateral shoulder sprains, bilateral elbow sprains, bilateral wrist sprains, and myalgia 

and myositis. Mr. Pugach noted that appellant should continue working with restrictions. 

On August 17, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits because her accepted bilateral upper extremity conditions had resolved. It found 

that the weight of medical evidence rested with the May 15, 2018 medical report of Dr. Swartz, 

who found that she no longer had any residuals or disability causally related to her accepted 

bilateral upper extremity conditions. OWCP afforded appellant 30 days to submit additional 

evidence or argument, in writing, if she disagreed with the proposed termination. 

On August 20, 2018 OWCP received a drug assessment report dated August 7, 2018. 

By decision dated September 21, 2018, OWCP finalized the termination of appellant’s 

wage-loss compensation and medical benefits, effective September 21, 2018. It found that the 

weight of medical evidence rested with Dr. Swartz, OWCP’s second opinion examiner, who 

concluded in a May 15, 2018 report, that she had no residuals or disability due to her work-related 

bilateral upper extremity conditions. 

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify

termination or modification of an employee’s benefits.3 It may not terminate compensation 

without establishing that the disability had ceased or that it was no longer related to the 

employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.5 The right to medical benefits 

for an accepted condition is not limited to the period of entitlement for disability compensation.6 

 

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

4 A.G., Docket No. 18-0749 (issued November 7, 2018); see I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 

734 (2003). 

5 R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

6 L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).
4

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.7 

ANALYSIS

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

compensation and medical benefits, effective September 21, 2018, as she no longer had residuals 

or disability causally related to her accepted bilateral upper extremity conditions. 

In his May 15, 2018 report, Dr. Swartz reviewed the SOAF and noted that appellant’s claim 

was accepted for bilateral shoulder, elbow, and hand strains. He reviewed her medical records and 

related that bilateral shoulder MRI scan reports were unremarkable, other than some age-related 

early osteophyte formation. Dr. Swartz conducted a physical examination of appellant’s bilateral 

upper extremities and reported tenderness in the AC joint and anteriorly of her shoulders. He also 

noted medial tenderness in both elbows and wrists. Sensation examination was intact in both upper 

extremities. Dr. Swartz opined that appellant no longer had residuals of her soft tissue strains 

resulting from her employment. He explained that there were no examination findings or 

diagnostic testing results to support that her work-related conditions were still active and required 

further treatment. Dr. Swartz reported that appellant’s current conditions of minor spurring and 

degenerative changes in the shoulders, fibromyalgia, and myofascial pain syndrome, were not 

related to her employment. He completed a work capacity evaluation (OWCP-5c) form, which 

indicated that she could work with restrictions, and explained that her physical restrictions were 

due to her nonemployment-related conditions. Dr. Swartz concluded that appellant no longer 

required further medical treatment.

The Board finds that OWCP properly accorded the weight of medical opinion with

Dr. Swartz who reported that appellant no longer had residuals or disability as a result of her 

accepted bilateral shoulder, elbow, and wrist strains. Dr. Swartz based his opinion on a proper 

factual and medical history as he reviewed the SOAF and the medical evidence of record. He also 

related his comprehensive examination findings and provided medical rationale in support of his 

opinion opined that appellant did not have any current residual injury or work limitations causally 

related to her accepted conditions. Dr. Swartz explained that her bilateral upper extremity soft 

tissue strains had resolved and that any physical restrictions she had were due to preexisting and 

degenerative changes.8 The Board finds that Dr. Swartz’s opinion is thorough and well 

rationalized and thus, constitutes the weight of the evidence establishing that appellant had no 

further residuals or disability due to her accepted bilateral shoulder, elbow, and hand strains.9 

Accordingly, OWCP properly relied on his May 15, 2018 second opinion report in terminating her

wage-loss compensation and medical benefits, effective September 21, 2018.10

 

7 R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

8 See F.J., Docket No. 17-0147 (issued March 27, 2018).

9 See H.W., Docket No. 18-1472 (issued March 6, 2019).

10 See A.G., supra note 4; see also A.F., Docket No. 16-0393 (issued June 24, 2016).
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Following its August 17, 2018 notice of proposed termination, OWCP received a May 10, 

2018 examination note by Leonid Pugach, a certified physician assistant. This report is of no 

probative value, however, because a physician assistant is not considered a physician as defined 

under FECA.11 The Board finds, therefore, that the remaining contemporaneous medical evidence 

is insufficient to overcome the weight of medical evidence given to Dr. Swartz’ May 15, 2018 

second opinion report in terminating appellant’s wage-loss compensation and medical benefits for 

her accepted bilateral shoulder, elbow, and wrist strains.12

On appeal appellant asserts that she is requesting a schedule award for 2010 to 2018. As 

noted above, however, the only issue before the Board is the September 21, 2018 OWCP decision, 

which terminated her wage-loss compensation and medical benefits as she no longer had residuals 

or disability causally related to her accepted bilateral upper extremity conditions. 

CONCLUSION

The Board finds that OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits, effective September 21, 2018, as she no longer had any residuals or disability 

causally related to her accepted bilateral upper extremity conditions.

 

11 5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, 

nurses, and physical therapists are not competent to render a medical opinion under FECA). 5 U.S.C. § 8101(2); 20 

C.F.R. § 10.5(t). George H. Clark, 56 ECAB 162 (2004) (physician assistant); James A. White, 34 ECAB 515, 518 

(1983) (physical therapist); Nemat M. Amer, Docket No. 03-338 (issued April 7, 2005) (acupuncturist).

12 See J.P., Docket No. 16-1103 (issued November 25, 2016).
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ORDER

IT IS HEREBY ORDERED THAT the September 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board