United States Department of Labor

Employees’ Compensation Appeals Board

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L.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Lexington, KY, Employer

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Docket No. 17-1561

Issued: April 6, 2018

Appearances: Case Submitted on the Record

Michael Welsh, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 10, 2017 appellant, through a representative, filed a timely appeal from a June 15, 

2017 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 this case.

 

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

ISSUE

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

compensation and medical benefits effective June 15, 2017. 

On appeal appellant’s representative contends that OWCP incorrectly relied on an OWCP 

referral physician’s opinion.

FACTUAL HISTORY

On January 23, 2001 appellant, then a 51-year-old payroll technician, filed an occupational 

disease claim (Form CA-2) attributing her thoracic outlet compression syndrome to her federal 

employment duties. On the back of the form the employing establishment noted that appellant 

stopped work on August 11, 2000 and had not returned. OWCP accepted the claim for aggravation 

of right thoracic outlet syndrome based on the opinion of appellant’s treating physician, Dr. J. 

Martin Favetto.

3

 It paid wage-loss compensation on the periodic rolls for temporary total disability 

commencing April 22, 2001.

4

Appellant continued to receive medical treatment from Dr. Favetto, Dr. Frank Burke, a 

Board-certified orthopedic surgeon, Dr. Dirk Franzen, a Board-certified neurological surgeon,

Dr. W. Ben Kibler, a Board-certified orthopedic surgeon, and Dr. Erdogan Atasoy, a Boardcertified general surgeon. She was also seen for a series of second opinion evaluations with

Dr. Stanley W. Collis a Board-certified orthopedic surgeon, Dr. S. Pearson Auerbach, a Boardcertified orthopedic surgeon, Dr. Robert T. Sheridan, a Board-certified orthopedic surgeon, and

Dr. Edward Gregory Fisher, a Board-certified orthopedic surgeon.

In a December 17, 2015 report, Dr. Kibler briefly noted appellant’s prior medical history. 

He related that he was unable to treat appellant for all of her medical conditions and that his 

treatment was restricted to her shoulder condition. With respect to her shoulder condition,

Dr. Kibler reported chronic weakness and weakness due to shoulder pain with impingement.

On September 8, 2016 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record, to Dr. Collis, for a second opinion examination for an updated 

assessment of her accepted work conditions and disability status. In a report dated October 25, 

2016, Dr. Collis reviewed appellant’s medical records for the master and subcase files, including 

the SOAF. He noted appellant’s accepted conditions, and her complaints and observed no obvious 

physical or pain problems. Appellant’s physical examination revealed fairly normal neck motion, 

 

3 OWCP assigned File No. xxxxxx675. It combined this case with File No. xxxxxx152, which was designated as 

the master file. OWCP accepted the conditions of right carpal tunnel syndrome, right medial epicondylitis, right 

lateral epicondylitis, right carpal tunnel wrist sprain, right radial styloid tenosynovitis, right brachial plexus lesions, 

and osteomyelitis of the forearm due to a January 1, 1999 employment injury. On September 30, 2002 appellant filed 

another Form CA-2. OWCP assigned File No. xxxxxx605 and accepted the claim for left carpal tunnel syndrome, 

left radial tunnel compression, left epicondylitis, thoracic outlet compression, myofascitis, myalagia and myositis, 

classical migraine, and pronator teres compression. This case record has also been combined under OWCP File No. 

xxxxxx152. 

4 Appellant retired from the employing establishment effective April 1, 2011.
3

good bilateral shoulder range of motion with no atrophy or tenderness, negative right wrist Tinel’s 

sign, and essentially negative bilateral upper extremity findings. Dr. Collis did find slight bilateral 

shoulder abduction and flexion. He opined that appellant no longer had any residuals or disability 

due to the accepted conditions. Dr. Collis opined that appellant’s accepted bilateral upper 

extremity conditions had resolved based on the lack of objective findings on examination. With 

respect to her migraine headaches, he noted that he could not offer an opinion as to whether 

appellant continued to suffer from this accepted condition as it was outside his specialty. Dr. Collis

concluded that appellant was capable of performing her usual work duties without restrictions.

In a progress note dated December 22, 2016, Dr. Kibler reported that appellant was seen, 

after a long absence, for a follow up of her right shoulder condition. Appellant reported increased 

soreness and tenderness. A physical examination revealed slight scapula protraction, abduction 

and external rotation weakness, upper trap tightness, soreness along the minor and major 

pectoralis, no instability, and a normal neurologic examination. Dr. Kibler diagnosed right 

scapulalgia.

On March 21, 2017 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits based on Dr. Collis’ opinion that appellant’s accepted 

conditions, except for the accepted classical migraine condition, had resolved without residuals or 

disability.

In an April 7, 2017 letter, appellant’s representative disagreed with the proposal to 

terminate appellant’s wage-loss compensation and medical benefits. He noted that appellant was 

scheduled for a functional capacity evaluation (FCE) on April 21, 2017.

In progress notes dated April 7 and May 5, 2017, Dr. Kibler provided examination findings 

and diagnosed right shoulder pain. In the April 7, 2017 progress notes, he noted that appellant was 

scheduled for an FCE on April 21, 2017 to determine her work capacity. Dr. Kibler, in the May 5, 

2017 progress notes, reviewed the April 21, 2017 FCE and indicated that appellant was capable of 

performing light-duty or sedentary work with restrictions.

By decision dated June 15, 2017, OWCP finalized the termination of her wage-loss 

compensation. It also found that medical benefits would be terminated, effective that day, except 

for the accepted condition of classical migraine. It found that the opinion of Dr. Collis represented 

the weight of the evidence. 

LEGAL PRECEDENT

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

modification or termination of an employee’s benefits.5 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 

 

5 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
4

the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.7

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

entitlement for disability.8 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.9

ANALYSIS

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

compensation and medical benefits. 

OWCP accepted the conditions of bilateral carpal tunnel syndrome, right medial 

epicondylitis, right radial styloid tenosynovitis, right lateral epicondylitis, right carpal tunnel wrist 

sprain right brachial plexus lesions, right osteomyelitis of the arm, left radial tunnel compression,

left epicondylitis, thoracic outlet compression, myofascitis, aggravation of right thoracic outlet 

syndrome, malagia and myositis, classical migraine, and left pronator teres compression. It paid 

wage-loss compensation for total disability beginning April 22, 2001.

On October 25, 2016 Dr. Collis, an OWCP referral physician, recounted appellant’s 

employment injuries, discussed his medical history, and noted the accepted conditions under each 

claim. On examination he found fairly normal neck range of motion, good bilateral shoulder range 

of motion, negative right wrist Tinel’s sign, and essentially negative bilateral upper extremity 

findings. Dr. Collis also reported unremarkable examination findings for the left wrist, hand, and 

elbow. He also found no evidence of carpal tunnel syndrome, right elbow problems, radial or ulna 

styloid problems, myofascitis, right radial plexus lesion, no right arm osteomyelitis, and resolved 

right ganglion. Dr. Collis also opined that appellant’s left pronator tares and left epicondylitis had 

resolved due to the negative examination findings. He advised that she could resume work without 

restrictions and did not require additional medical treatment for her upper extremity employment 

injuries. With respect to the accepted classical migraine, Dr. Collis declined to offer an opinion 

as he was not a specialist in that field. He thoroughly reviewed the factual and medical background 

and accurately summarized the relevant medical evidence. Moreover, Dr. Collis provided detailed 

findings on examination and reached conclusions regarding appellant’s conditions which 

comported with his findings.

10

 Consequently, the opinion of Dr. Collis represents the weight of 

the evidence and establishes that appellant was no longer disabled as of June 15, 2017. His opinion 

 

6

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

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

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

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

10 D.O., Docket No. 16-1726 (issued October 26, 2017); Pamela K. Guesford, 53 ECAB 727 (2002)
5

also supports the finding that appellant did not require further medical treatment due to her 

accepted employment conditions, except for classical migraine, as of June 15, 2017.11

The remaining evidence of record submitted prior to OWCP’s termination of compensation 

is insufficient to show that appellant had further disability or residuals of her accepted employment 

conditions, except for classical migraine. Dr. Kibler, in a progress report dated December 22, 

2016, noted that appellant was seen for a follow-up visit for her right shoulder after a long absence. 

He provided examination findings, and diagnosed right scapulalgia. In progress notes dated 

April 7. May 5, 2017, Dr. Kibler diagnosed right shoulder pain. On May 5 and 6, 2017 he 

indicated that appellant was capable of returning to work with restrictions based on an April 21, 

2017 FCE. The Board finds that Dr. Kibler failed to provide medical rationale supporting his 

opinion that she was unable to work due to her accepted conditions.12 Medical conclusions 

unsupported by rationale are of diminished probative value.13 In addition, the Board notes that 

scapulalgia and shoulder pain are mere symptoms not diagnoses. The Board has consistently held 

that pain is not a compensable medical diagnosis.14 Dr. Kibler did not report that appellant still 

had disability or residuals due to her accepted conditions. Thus, his reports are insufficient to 

create a conflict with the opinion of Dr. Collis.

In an October 26, 2012 progress report, Dr. Burke discussed appellant’s history of a 

March 27, 2012 work injury, provided examination findings, and diagnosed lumbar radiculopathy, 

degenerative disc disease, and myalgia. He did not, however, address disability or residuals due 

to the accepted conditions; consequently, his report is of little probative value.13

On appeal counsel contends that the “impartial” opinion of Dr. Collis is unsupported by 

the objective evidence. The Board notes that Dr. Collis was not selected to resolve a conflict in 

the medical opinion evidence, but was scheduled by OWCP for a second opinion evaluation. As 

discussed above, however, Dr. Collis provided detailed findings on examination and supported his 

conclusion with medical rationale. His report represents the weight of the evidence regarding the 

termination of appellant’s compensation and medical benefits, effective June 15, 2017.15

The Board therefore finds that OWCP met its burden of proof in this matter to terminate 

appellant’s wage-loss compensation and authorization for medical benefits effective 

June 15, 2017.

 

11 See C.C., Docket No. 16-0318 (issued May 2, 2016).

12 See S.C., Docket No. 16-0284 (issued June 27, 2016); Dean E. Pierce, 40 ECAB 1249 (1989).

13 Richard A. Neidert, 57 ECAB 474 (, 2006)

14 C.F., Docket No. 08-1102 (issued October 10, 2008).

15 Appellant continues to be entitled to medical benefits for her accepted migraine condition. 
6

CONCLUSION

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

compensation and medical benefits, except for medical treatment for classical migraine, effective 

June 15, 2017.

ORDER

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

Programs dated June 15, 2017 is affirmed.

Issued: April 6, 2018

Washington, DC

Christopher J. Godfrey, 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