United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

DEPARTMENT OF JUSTICE, FORT DIX 

FEDERAL CORRECTIONAL INSTITUTION, 

Fort Dix, NJ, Employer

__________________________________________

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Docket No. 18-0746

Issued: November 26, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 23, 2018 appellant, through counsel, filed a timely appeal from an October 13, 

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 over 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 appellant has met her burden of proof to establish a continuing 

employment-related condition or disability after May 15, 2013.

FACTUAL HISTORY

This case has previously been before Board.

3

 The facts and circumstances as set forth in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth 

below.

On October 5, 2011 appellant, then a 47-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1), assigned OWCP File No. xxxxxx466, alleging that, on September 28, 

2011, she sustained left elbow and shoulder injuries as a result of shooting firearms in the 

performance of duty.

4

 She stopped work on September 29, 2011.

After initial development of the claim, by decision dated December 1, 2011, OWCP denied 

appellant’s traumatic injury claim, finding that the medical evidence of record did not contain a 

rationalized medical opinion explaining how her diagnosed medical condition was causally related 

to the accepted September 28, 2011 employment incident.

In a December 7, 2011 letter, appellant, through counsel, requested a telephone hearing 

before an OWCP hearing representative. The hearing was held on March 13, 2012. The hearing 

representative noted that an emergency room report established a left elbow strain causally related 

to the September 28, 2011 employment incident. By decision dated May 10, 2012, she reversed 

the December 1, 2011 decision which denied appellant’s claim. Appellant received wage-loss 

compensation retroactively to November 14, 2011. 

Effective April 8, 2012, appellant began full-time limited-duty work as a legal assistant at 

the employing establishment. She continued to receive compensation for wage loss, adjusted to 

reflect her actual earnings.5

In a report dated July 6, 2012, Dr. Laura Ross, and osteopathic physician, provided results 

on examination and diagnosed status post left elbow sprain with ulnar neuritis. In a form report 

dated July 19, 2012, she diagnosed left lateral epicondylitis/ulnar neuritis and checked a box 

marked “yes” indicating that the condition was causally related to using firearms. On 

 

3 Docket No. 14-0472 (issued August 17, 2015).

4 Appellant has prior claims involving the left arm. She filed an occupational disease claim (Form CA-2) on 

September 1, 2010 in which OWCP accepted that she sustained left shoulder bursae and tendon disorder and left 

elbow enthesopathy due to continuous use of the left arm for lifting items such as files and mail buckets. OWCP 

assigned that claim OWCP File No. xxxxxx526. Appellant filed a notice of recurrence (Form CA-2a) claiming 

disability on September 8, 2010 due to lifting files and mail bins for five years. OWCP developed this incident as a 

separate occupational claim, and on February 22, 2011 accepted the claim for left shoulder impingement syndrome, 

left lateral epicondylitis, left lateral extensor tendon tear, and left elbow tendinitis. It assigned that claim OWCP File 

No. xxxxxx608. OWCP File Nos. xxxxxx526 and xxxxxx608 have been administratively combined with the present 

claim, with File No. xxxxxx608 serving as the master file.

5 The Board notes that OWCP did not issue a formal loss of wage-earning capacity determination.
3

September 10, 2012 Dr. Ross reported regarding her treatment of appellant’s condition. She then 

opined that the trauma and force of the use of appellant’s firearm, while qualifying for a firearms 

test at work on September 28, 2011 directly caused the exacerbation of her underlying lateral 

epicondylitis of her left elbow, as well as left elbow ulnar neuropathy. Dr. Ross stated that her 

findings were based on multiple physical examinations and diagnostic testing. 

OWCP prepared a statement of accepted facts (SOAF) and referred appellant for a second 

opinion examination with Dr. Stanley Askin, a Board-certified orthopedic surgeon, to determine 

the status of appellant’s accepted condition. In a report dated December 21, 2012, Dr. Askin 

provided examination findings. With respect to appellant’s accepted left elbow condition, he 

stated that a sprain was a partial tear of the ligament and he opined that appellant’s clinical 

presentation did not suggest that she continued to have a partial tear of a ligament at the left elbow. 

As to a left lateral epicondylitis, Dr. Askin stated that appellant did not find any anatomic condition 

consequential to her work activities. He concluded that there was no work-related reason to 

prevent her from performing her regular duties as a correctional officer. 

By decision dated March 4, 2013, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that date, finding that she no longer had any condition or disability 

causally related to her September 28, 2011 employment injury. It found that the weight of the 

medical evidence rested with the December 21, 2012 medical opinion of Dr. Askin, who opined

that appellant no longer had any residuals of her accepted employment-related left elbow strain, 

that she did not sustain an additional left elbow condition as a consequence of her accepted 

condition, and that she could perform her regular duties as a correctional officer. 

In a letter received by OWCP on March 12, 2013, appellant, through counsel, requested an 

oral hearing before an OWCP hearing representative. 

In a report dated May 15, 2013, Dr. Ross disagreed with Dr. Askin’s opinion and opined 

that the September 28, 2011 employment injury caused an exacerbation of appellant’s underlying 

left elbow lateral epicondylitis and caused her left ulnar neuropathy based on examination,

electromyogram and other test results.

By decision dated September 18, 2013, a second OWCP hearing representative affirmed 

the March 4, 2013 termination decision. She found that the medical evidence submitted by 

appellant was insufficient to outweigh the weight accorded to Dr. Askin’s medical opinion. 

On December 26, 2013 appellant, through counsel, appealed to the Board. By decision 

dated August 17, 2015, the Board affirmed in part and set aside in part the September 18, 2013 

decision.6 The Board found that OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 4, 2013, as Dr. Askin’s opinion 

represented the weight of the medical evidence. The Board determined, however, that a conflict 

existed in the medical opinion evidence between Dr. Askin and Dr. Ross with respect to whether 

appellant had established a continuing condition, left lateral epicondylitis or left ulnar neuritis, or 

disability as causally related to the September 28, 2011 employment injury. Thus, the Board 

 

6 Docket No. 14-0472 (issued August 17, 2015).
4

remanded the case to OWCP for resolution of the conflict in the medical opinion evidence in 

accordance with 5 U.S.C. § 8123(a).

Following the issuance of the Board’s August 17, 2015 decision, OWCP, on March 17, 

2017, referred appellant, together with a SOAF, the medical record, and a list of questions, to

Dr. Robert W. Elkins, a Board-certified orthopedic surgeon, for an impartial medical evaluation. 

In an April 26, 2017 report, Dr. Elkins related a history of the September 28, 2011 

employment injury, appellant’s medical treatment and employment background.7 He noted her 

current complaints of left shoulder, left arm, and left elbow, fourth and fifth finger pain, 

discomfort, numbness, tingling, and pins and needles sensation. Appellant rated her left elbow 

pain as 4 out of 10. She experienced increased pain when moving in bed and up/down in a chair, 

sitting, driving a car, lifting from below the waist and at the waist to shoulder height, lifting above 

the shoulders, carrying, and pushing/pulling. Appellant also had increased pain when pressure

was applied and in cold weather conditions. She further complained of pain in her central neck, 

left shoulder, arm, and forearm, and numbness, tingling, and pins and needles which she rated as 

5 out of 10 in intensity. Dr. Elkins reviewed the medical record and SOAF. He provided detailed 

physical examination findings. Dr. Elkins reported negative impingement testing of the shoulder. 

There was minimal tenderness over the medial and lateral epicondyle of the left elbow and a 

negative Tinel’s sign. There was no particular tenderness in the neck, shoulder, scapula, or arm 

area. A neurologic examination was equal with +2 equal reflexes in the biceps, triceps, and 

brachioradialis. There was 5/5 strength in the shoulders, biceps, grip and pinch and equal 

sensation. Dr. Elkins indicated that appellant had a score within physiologic limits on a pain 

diagram. Appellant had a score of 54 on a pain questionnaire. 

Dr. Elkins diagnosed resolved lateral epicondylitis, possible subjective complaints of ulnar 

nerve neuropathy at the elbow, chronic left arm, shoulder, and elbow pain, and lateral 

epicondylectomy performed on March 16, 2011. He noted appellant’s accepted conditions 

contained in the SOAF, including the accepted impingement of the left shoulder, lateral 

epicondylitis on the left, lateral extensor tear on the left, and tendinitis of the left elbow under 

OWCP File No. xxxxxx608. In response to OWCP’s questions regarding appellant’s left elbow,

Dr. Elkins noted that at the present time there was no evidence of ulnar neuritis as there was a 

negative Tinel’s sign at the elbow, unremarkable sensation in the hand, and full ROM and good

strength in the hand. He further noted that the accepted September 28, 2011 employment injury 

had resolved. Dr. Elkins related that the accepted injury temporarily exacerbated appellant’s left 

lateral epicondylitis and ulnar nerve neuritis for a limited time period which ceased on May 15, 

2013, resulting in no permanent aggravation. He explained that appellant had minimal 

symptomatology and a negative examination with no objective findings. Dr. Elkins advised that,

based on the left upper extremity appellant had no disability and she could perform her date-ofinjury correctional officer position with no restrictions. Regarding whether appellant had any 

disability after March 4, 2013, he advised that she had no disability after May 15, 2013.

 

7 Dr. Elkins noted that appellant currently worked at the Department of Veterans Affairs in Florida. 
5

By decision dated May 24, 2017, OWCP found that, based on Dr. Elkins’ report, 

appellant’s employment-related injury had resolved, the temporary aggravation of her lateral 

epicondylitis had ceased as of May 15, 2013,8and she had no disability as of that date.

In a letter received by OWCP on June 2, 2017, appellant’s current counsel requested an 

oral hearing before an OWCP hearing representative. The hearing was held on August 29, 2017. 

By decision dated October 13, 2017, a third OWCP hearing representative affirmed the 

May 24, 2017 decision. He found that the weight of medical evidence rested with Dr. Elkins’

impartial medical opinion that appellant no longer had any residuals, additional left elbow 

conditions, or disability as a result of her September 28, 2011 work injury. The hearing 

representative noted that since Dr. Elkins identified May 15, 2013 as the date that the work-related 

aggravation of appellant’s left lateral epicondylitis ulnar neuritis conditions ceased, compensation 

for a loss of wage-earning capacity was payable through that date. 

LEGAL PRECEDENT

Once OWCP properly terminates a claimant’s compensation benefits, the burden of proof 

shifts to the claimant to establish that he or she has continuing disability after that date related to 

his or her accepted injury.9 To establish causal relationship between the condition as well as any 

attendant disability claimed and the employment injury, a claimant must submit rationalized 

medical evidence based on a complete medical and factual background, supporting such causal 

relationship.10 Causal relationship is a medical issue and the medical evidence required to establish 

causal relationship is rationalized medical evidence.11

Section 8123 (a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.12 The implementing regulations 

state that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.13 In situations where there exist opposing medical reports of virtually equal weight 

and rationale and the case is referred to an impartial medical specialist for the purpose of resolving 

 

8

In its May 24, 2017 decision, OWCP incorrectly identified May 15, 2015 as the date on which appellant no longer 

any disability or continuing work-related medical conditions.

9 Manuel Gill, 52 ECAB 282 (2001).

10 Id.

11 Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12 5 U.S.C. § 8123(a).

13 20 C.F.R. § 10.321.
6

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.14

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish continuing 

employment-related residuals or disability after May 15, 2013.

As noted, in a prior appeal, the Board affirmed OWCP’s termination of appellant’s 

compensation, effective March 4, 2013. However, the Board set aside OWCP’s hearing 

representative’s September 18, 2013 decision as to whether appellant had established continuing

residuals or disability after March 4, 2013 causally related to the accepted September 28, 2011

employment injury of left elbow strain. The Board found that an unresolved conflict existed 

between Dr. Askin, an OWCP referral Board-certified orthopedic surgeon, and Dr. Ross, an 

attending osteopath, as to whether appellant had established that the accepted work injury caused 

her left lateral epicondylitis, ulnar neuritis, or disability. The Board’s previous review of evidence 

regarding the termination of appellant’s compensation benefits is res judicata.

15

Following the Board’s decision, on March 17, 2017 OWCP referred appellant to Dr. Elkins

for an impartial medical examination. The Board finds that Dr. Elkins’ impartial medical opinion 

is entitled to special weight and establishes that appellant had no continuing conditions or disability

due to the accepted employment injury.

16

 In an April 26, 2017 report, Dr. Elkins reviewed the 

SOAF and the medical file and noted essentially normal findings on physical examination. He 

opined that the accepted employment injury had resolved, that the temporary aggravation of

appellant’s left elbow lateral epicondylitis and ulnar nerve neuritis had ceased as of May 15, 2013 

and that appellant could perform her regular duties as a correctional officer without restrictions as 

of that date. Dr. Elkins reasoned that there were no objective findings consistent with her

subjective complaints.

The Board finds that Dr. Elkins provided a comprehensive, well-rationalized opinion in 

which he clearly found that appellant could return to her preinjury job. Dr. Elkins had full 

knowledge of the relevant facts and the course of appellant’s conditions. His opinions were based 

on the SOAF and an accurate factual and medical history. Dr. Elkins’ report contained a detailed 

summary of the history of the claim.17 Additionally, he addressed the medical records, examined 

appellant, and reached a reasoned conclusion regarding appellant’s conditions.18 Dr. Elkins’

opinion is entitled to the special weight accorded an impartial examiner and constitutes the weight 

 

14 See M.W., Docket No. 16-0959 (issued October 6, 2016); James P. Roberts, 31 ECAB 1010 (1980).

15 Findings made in prior Board decisions are res judicata absent any further review by OWCP under section 8128 

of FECA. A.C., Docket No. 18-0484 (issued September 7, 2018).

16 See D.P., Docket No. 17-1097 (issued January 4, 2018); L.G., Docket No. 15-1334 (issued January 28, 2016).

17 See R.G., Docket No. 16-0271 (issued May 18, 2017).

18 Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy and 

completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and the 

medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be given to 

each individual report).
7

of the medical evidence.19 Thus, appellant has not met her burden of proof to establish a continuing 

employment-related condition or disability due to the accepted injury.

On appeal counsel contends that OWCP improperly denied appellant’s entitlement to 

ongoing benefits. As stated above, the special weight of the medical evidence, as accorded to

Dr. Elkins’ opinion, establishes that appellant had no continuing residuals or disability due to her 

accepted September 28, 2011 employment injury and can return to her preinjury position. 

Appellant failed to submit rationalized medical evidence sufficient to establish a medical condition 

or disability after May 15, 2013 causally related to her September 28, 2011 accepted left elbow 

condition. She, therefore, failed to meet her burden of proof.

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 appellant has not met her burden of proof to establish a continuing

employment-related condition or disability after May 15, 2013.

ORDER

IT IS HEREBY ORDERED THAT the October 13, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 26, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

19 See Melvina Jackson, 38 ECAB 443 (1987).