United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, White River Junction, VT, Employer

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Docket No. 18-0468

Issued: September 4, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 8, 2018 appellant filed a timely appeal from a December 21, 2017 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 to consider the merits of the case.

ISSUE

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

compensation and medical benefits effective January 7, 2018.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the prior decision are incorporated herein by reference. The relevant facts are as follows.

On January 27, 1995 appellant, then a 42-year-old administrative assistant filed an 

occupational disease claim (Form CA-2) alleging that on January 1, 1994 she initially became 

aware of tendinitis or carpal tunnel syndrome in her right arm. She first attributed her condition 

to her federal employment on January 23, 1995 and noted that the more time she spent using her 

computer the more painful her right arm became. On March 3, 1995 OWCP accepted appellant’s 

claim for right radial tenosynovitis. Appellant stopped work on September 29, 1996 and received 

wage-loss compensation on the periodic rolls as of December 27, 1996. On February 12, 2002 

OWCP expanded the acceptance of appellant’s claim to include right carpal tunnel syndrome and 

right carpal tunnel release.

On March 1, 2002 appellant filed a recurrence (Form CA-2) claiming that on September 1, 

2001 she experienced a worsening of her fibromyalgia. She alleged that her fibromyalgia was not 

only related to her federal employment activities and conditions, but was caused by these activities 

and conditions. By decision dated March 14, 2002, OWCP denied appellant’s claim for medical 

benefits for her condition of fibromyalgia. After multiple requests for reconsideration, by decision 

dated December 2, 2002, it denied modification of the March 14, 2002 decision. Appellant 

appealed the December 2, 2002 OWCP decision to the Board. By decision dated March 10, 2004,3

the Board found a conflict of medical opinion evidence existed and remanded the claim for further 

development of the medical evidence. After further development as directed by the Board on 

March 10, 2004, by an August 13, 2004 decision, OWCP expanded acceptance of appellant’s 

claim to include fibromyalgia.

On March 2, 2016 OWCP referred appellant for a second opinion examination with

Dr. Douglas P. Kirkpatrick, a Board-certified orthopedic surgeon. Dr. Kirkpatrick completed his 

second opinion report on April 12, 2016. He noted that appellant’s date-of-injury position required 

keyboarding and writing which resulted in right arm pain. On physical examination, appellant 

reported pain in her right forearm with weakness as well as whole body pain. Dr. Kirkpatrick 

noted no atrophy in any extremity. He found full range of motion in the extremities with slight 

pain to palpation of the forearm muscles. Dr. Kirkpatrick found no physical evidence of carpal 

tunnel syndrome or de Quervain’s tendinitis in appellant’s right wrist and concluded that she had 

no residuals of these conditions. He further noted that, although her claim was accepted for 

fibromyalgia, her complaints of fatigability and diffuse pain did not appear to be clear evidence of 

this condition. Dr. Kirkpatrick found that appellant had some evidence of multiple tender and sore 

areas which was indicative of fibromyalgia. He noted that her complaints of fibromyalgia were 

largely subjective and not in keeping with “classic fibromyalgia” diagnosis as is her fatigability.

Dr. Kirkpatrick opined, “I find this difficult to discern whether she suffers residuals from 

fibromyalgia in this setting, but certainly “the claimed disability seems in far excess as expected 

 

2 Docket No. 03-0661 (issued March 10, 2004).

3

Id. 
3

even with an active diagnosis of fibromyalgia.” He further opined that appellant could perform 

full-time light-duty work. 

Dr. Kirkpatrick completed a work capacity evaluation (OWCP-5c) and opined that 

appellant could not return to her date-of-injury position. He found that she could push or pull 20 

pounds for two hours and lift 30 pounds for two hours. Dr. Kirkpatrick determined that appellant 

could perform repetitive movements of her wrists and elbows for two hours each, and could operate 

a motor vehicle for one hour. He determined that she should not squat, kneel, or climb and that 

she could walk or stand for two hours a day.

In reports dated June 6 and September 28, 2016, Dr. Julie Davis, a Board-certified family 

practitioner and appellant’s attending physician, addressed Dr. Kirkpatrick’s findings and 

conclusions that appellant could return to work. She disagreed and recommended a functional 

capacity evaluation (FCE). Dr. Davis opined that appellant continued to experience symptoms of 

her accepted conditions of carpal tunnel syndrome, bilateral arm tendinitis, and fibromyalgia. She 

noted that appellant limited activities and utilized pain medication to control her symptoms. 

On October 3, 2016 appellant underwent an FCE as recommended by Dr. Davis. On 

December 7, 2016 Dr. Davis reviewed appellant’s date-of-injury job description and opined that 

appellant could not fully perform these duties as she could not lift over eight pounds based on her 

FCE. She further noted that appellant’s fine and medium dexterity were limited such that appellant 

could not type or perform fine motor skills.

In a letter dated February 15, 2017, OWCP referred appellant, a statement of accepted facts 

(SOAF), and a list of questions to Dr. Daniel O’Neill, a Board-certified orthopedic surgeon, for an 

impartial medical examination to resolve the conflict of medical opinion evidence between 

Drs. Davis and Kirkpatrick regarding appellant’s work capacity. The SOAF listed appellant’s 

accepted work-related conditions including right radial tenosynovitis, right carpal tunnel 

syndrome, and fibromyalgia.

In a report dated March 7, 2017, Dr. O’Neill reviewed the SOAF and appellant’s medical 

history. He reported her continued symptoms of fibromyalgia and weakness in the right wrist and 

noted that she last worked in 1996 as an administrative assistant. Appellant reported that she had 

taken her pain medication on the day of examination. Dr. O’Neill performed a physical 

examination and found that she was cooperative and made good efforts throughout. He noted 

decreased sensation on the left hand compared to the right, but normal strength throughout. 

Dr. O’Neill found mildly positive Tinel’s sign at the right carpal tunnel, but no neurological signs. 

He reported that appellant’s maximum pain site was at the epicondyle of her right elbow, but that 

she exhibited full range of motion, no loss of strength, and negative Tinel’s sign. Dr. O’Neill 

diagnosed right upper extremity pain of uncertain etiology, probably related to fibromyalgia. He 

opined that appellant’s only appropriate diagnosis was fibromyalgia, which was “clearly not”

associated with her work, but due to her physiology, that is, physically not capable of doing her 

job. Dr. O’Neill explained that she “was simply not capable physiologically ...” of performing 

her date-of-injury position. He drew a parallel between appellant’s employment duties and his 

own capacity to compete as a professional cyclist, noting that while he could perform many of the 

actions, he did not have the physical capacity to ride at that speed and that distance. Dr. O’Neill 

determined that after just a few years of working at the employing establishment that she was not 
4

physically capable of doing that job. He opined that appellant had issues with tolerance and that 

intolerance to a job did not equate with impairment. Dr. O’Neill determined that her only diagnosis 

was fibromyalgia and that this condition was not work related. He concluded that appellant had 

no objective findings and required no treatment due to her employment. Dr. O’Neill determined 

that she could perform full-time, light-duty work limited only by her tolerance and that she had no 

current disability.

In a letter dated June 27, 2017, OWCP requested that Dr. O’Neill clarify whether appellant 

had any residuals of her accepted conditions. It also requested that he complete a work restriction 

evaluation (Form OWCP-5c). Dr. O’Neill provided a supplemental report on July 5, 2017 and 

opined that appellant could perform all the physical requirements of her date-of-injury position as 

an administrative assistant. He opined that she did not have any residuals of the accepted 

conditions or 1994 employment injury. Dr. O’Neill completed the Form OWCP-5c and indicated 

that appellant was capable of performing her usual job without restrictions. He found that she

could perform work at the light strength level and indicated that she could lift up to 30 pounds and 

push or pull 20 pounds for one hour each. Dr. O’Neill also indicated that appellant could reach 

above the shoulder for two hours, twist for one hour, and bend or stoop for two hours. He restricted 

the use of her wrists and elbows for repetitive movements to two hours a day. Dr. O’Neill found 

that appellant could squat, kneel, and climb for one hour each.

On November 17, 2017 OWCP provided appellant with a notice of proposed termination. 

It determined that Dr. O’Neill’s report resolved the conflict of medical opinion evidence between 

the second opinion physician, Dr. Kirkpatrick, and appellant’s physician, Dr. Davis, and 

determined that appellant had no disability or medical residuals of her accepted conditions. He 

found that appellant could return to her date-of-injury position as an administrative assistant. 

OWCP proposed to terminate her wage-loss compensation and medical benefits and afforded her 

30 days to respond.

In a letter dated November 19, 2017, appellant responded to OWCP’s proposed termination 

and contended that her accepted employment-related conditions continued, resulting in disability 

for work and the need for further medical treatment. She asserted that her fibromyalgia should 

have been assessed more thoroughly by a rheumatologist. In support of her contentions, appellant 

provided documents from the National Fibromyalgia Association website.

By decision dated December 21, 2017, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective January 7, 2018. It found that Dr. O’Neill’s March 5, 

2017 report was entitled to the special weight of the medical evidence and established that 

appellant had no disability from work or medical residuals causally related to her 1994 

occupational injury.

LEGAL PRECEDENT

Pursuant to FECA, once OWCP accepts a claim and pays compensation, it has the burden 

of proof to justify termination or modification of an employee’s benefits.4 OWCP may not 

 

4 See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

terminate compensation without establishing that the disability has ceased or that it is no longer 

related to the employment.5 Its burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.6 The right to medical 

benefits for an accepted condition is not limited to the period of entitlement for disability 

compensation.7 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.8

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 (known as a referee physician or impartial medical specialist) who 

shall make an examination.9 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.10 

When there exists opposing reports of virtually equal weight and rationale and the case is referred 

to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized and based upon a proper factual background, must be 

given special weight.11

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits.

OWCP accepted appellant’s claim for right radial tenosynovitis, right carpal tunnel 

syndrome, and fibromyalgia. On March 2, 2016 it referred her for a second opinion evaluation 

with Dr. Kirkpatrick who, in his April 12, 2016 report, found that she had some evidence 

fibromyalgia on physical examination, but that her complaints of fibromyalgia symptoms were 

largely subjective. Dr. Kirkpatrick found that appellant could return to work in a light-work 

capacity with restrictions, including lifting limited to 30 pounds for two hours a day. Appellant’s 

attending physician, Dr. Davis, opined that appellant continued to experience symptoms of her 

accepted conditions of carpal tunnel syndrome, bilateral arm tendinitis, and fibromyalgia. She 

opined that appellant could not fully perform the duties of her date-of-injury position as she could 

 

5 See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. 

Minor, 37 ECAB 541 (1986).

6 See R.P., supra note 4; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7 See R.P., supra note 4; A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. 

Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990). 

8 See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); 

Furman G. Peake, id. 

9 5 U.S.C. § 8123(a); see R.P., supra note 4; R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-

1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

10 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

11 See R.P., supra note 4; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
6

not lift over eight pounds and as her fine and medium dexterity were limited such that appellant 

could not type or perform fine motor skills. The Board finds that OWCP properly determined that 

there was a conflict of medical opinion evidence between Dr. Kirkpatrick and Dr. Davis regarding 

the extent of appellant’s ability to work.

OWCP then properly referred appellant for an impartial medical examination with

Dr. O’Neill to determine her disability status. In his March 7, 2017 report, Dr. O’Neill reviewed 

the SOAF. He reported appellant’s continued symptoms of fibromyalgia and weakness in the right 

wrist. Dr. O’Neill performed a physical examination and found that she was cooperative and made 

good efforts throughout. He diagnosed right upper extremity pain of uncertain etiology, “probably 

related to fibromyalgia.” Dr. O’Neill opined that appellant’s only appropriate diagnosis was 

fibromyalgia, which was “clearly not” associated with her work, but due to her physical 

incapability to perform her job. He determined that she could perform full-time, light-duty work 

limited only by her tolerance and that she had no current disability.

In a letter dated June 27, 2017, OWCP requested that Dr. O’Neill clarify whether appellant 

had any residuals of her accepted conditions. On July 5, 2017 Dr. O’Neill provided a supplemental 

report and opined that she could perform all the physical requirements of her date-of-injury 

position as an administrative assistant. He opined that appellant did not have any residuals of the 

accepted conditions or 1994 employment injury. 

The Board finds that OWCP improperly found that Dr. O’Neill’s report should be entitled 

to the special weight afforded an impartial medical examiner. While Dr. O’Neill reviewed 

appellant’s medical record in detail, he did not accept the facts as presented in the SOAF in 

rendering his medical opinion. OWCP procedures and Board precedent dictate that when an 

OWCP medical adviser, second opinion specialist, or referee physician renders a medical opinion 

based on a SOAF which is incomplete or inaccurate or does not use the SOAF as the framework 

in forming his or her opinion, the probative value of the opinion is seriously diminished or negated 

altogether.12

Dr. O’Neill indicated that he had reviewed the SOAF and medical reports of record and 

ultimately concluded that appellant’s accepted condition of fibromyalgia was not due to the 

accepted employment injury. Contrary to the SOAF, he opined that the mechanism of injury did 

not cause the accepted conditions. The Board has explained that the report of an impartial medical 

examiner who disregards a critical element of the SOAF and disagrees with the medical basis for 

acceptance of a condition is defective and insufficient to resolve the existing conflict of medical 

opinion evidence.13 Dr. O’Neill’s reports are of diminished probative value as his opinion did not 

rely on the SOAF and it contradicted critical elements of the SOAF. The Board notes that it is the 

function of a medical expert to give an opinion only on medical questions, not to find facts.14 

Dr. O’Neill did not rely on the SOAF and as such his report is not based on an accurate history of 

 

12 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). See also D.E., Docket No. 17-1794 (issued April 13, 2018); K.V., Docket No. 15-0960 (issued 

March 9, 2016); Paul King, 54 ECAB 356 (2003).

13 Id.

14 Id.
7

injury. His report is therefore insufficient to meet OWCP’s burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits.15

Accordingly, OWCP improperly terminated appellant’s wage-loss compensation and 

medical benefits effective January 7, 2018.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective January 7, 2018.

ORDER

IT IS HEREBY ORDERED THAT the December 21, 2017 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: September 4, 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

 

15 Id.