United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.C., Appellant

and

OFFICE OF PERSONNEL MANAGEMENT, 

Boyers, PA, Employer

__________________________________________

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Docket No. 18-0842

Issued: December 20, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 7, 20181appellant filed a timely appeal from a September 12, 2017 merit 

decision and a February 28, 2018 nonmerit decision of the Office of Workers’ Compensation 

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from September 12, 2017, the date of OWCP’s last merit decision, was 

March 11, 2018. As this fell on a Sunday, appellant had until the next business day, Monday, March 12, 2018 to file 

the appeal. Since using March 13, 2018 the date the appeal was received by the Clerk of the Appellate Boards, would 

result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal 

Service postmark is March 7, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

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.

3

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective March 5, 2017; and (2) whether OWCP 

properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 

U.S.C. § 8128(a). 

FACTUAL HISTORY

On February 15, 1979 appellant, then a 33-year-old employment examiner, filed a 

traumatic injury claim (Form CA-1) alleging that on January 16, 1979 she sustained injuries when 

a semi-truck skidded in the snow and rear-ended the government vehicle that she was driving while 

in the performance of duty. OWCP initially accepted the claim for sprain of neck and adhesive 

capsulitis of the right shoulder. It later expanded acceptance of the claim to include cervicalgia

and paid compensation benefits.

4

 

Appellant returned to work and worked intermittently until July 28, 1983.5 OWCP 

subsequently placed her on the periodic compensation rolls.6 

To determine the status of appellant’s accepted conditions and disability, OWCP referred 

her to Dr. Ning Sun, a Board-certified neurologist, for a second opinion evaluation. In a March 20, 

2012 report, Dr. Sun noted the history of injury and presented examination findings. An 

assessment was provided of mild right carpal tunnel syndrome electromyograph and nerve 

conduction velocity, possible cervical radiculopathy, cervical muscle spasm, and right shoulder 

pain with previous abnormal magnetic resonance imaging (MRI) scan. In a March 21, 2012 report,

Dr. Sun advised that appellant’s neck pain and right shoulder pain were related to the work injury. 

He noted that her condition was permanent and that she was totally disabled. In a work capacity 

evaluation form (Form OWCP-5c), Dr. Sun opined that appellant could not work until she had 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the February 28, 2018 decision, OWCP received additional evidence. 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.

4 May 18 and July 8, 1997 statements of accepted facts (SOAF) indicate that the claim was accepted for neck strain 

(resolving cervical myositis and resolving lumbar sacral myositis), adhesive capsulitis of the left shoulder 

(misidentified), and post-traumatic brachial neuritis. February 1, 2012 and March 4, 2015 SOAFs indicate that the 

accepted conditions were neck strain, adhesive capsulitis of the left shoulder (misidentified), and post-traumatic 

brachial neuritis. 

5 By decision dated June 4, 1984, OWCP issued a schedule award for five percent permanent impairment to 

appellant’s right upper extremity. The award ran for 15.60 weeks from April 3 to July 21, 1984 for fraction of a day. 

6 Appellant reported periods of part-time employment from 1986 through 1997. 
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significant improvement. In a March 29, 2012 report, he indicated that it was unclear whether her

right carpal tunnel syndrome was related to her work injury. Dr. Sun noted that appellant’s neck 

pain and shoulder pain were permanent as it increased after she continued to work after the work 

injury. 

In a June 21, 2012 report, Dr. Herbert White, Jr., an internist and occupational medicine 

specialist, diagnosed cervical disc disease with right cervical radiculopathy -- worse; right rotator 

cuff tear -- worse; right shoulder anterior glenoid labral tear; right carpal tunnel syndrome -- worse; 

status post right shoulder adhesive capsulitis. He opined that appellant was unable to work. 

In an August 23, 2012 report, Dr. White determined that appellant continued to have 

paresthesia that radiated from the neck into the right arm and decreased range of motion of the 

right wrist, shoulder, and neck as well as weakness in those areas. He noted that this resulted in a 

severe impairment of the right upper extremity as well as neck movement as the use of her neck 

for flexion, extension, and rotation was severely impaired. Dr. White opined that the conditions 

diagnosed in his June 21, 2012 report were directly caused by the work injury and rendered 

appellant unable to work. 

On January 23, 2014 OWCP referred appellant to Dr. Allan Brecher, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a March 11, 2014 report, Dr. Brecher

reviewed the SOAF and the medical record, and reported his examination findings.7 He opined 

that appellant’s brachial neuritis and neck sprain had resolved and that there were minimal changes 

on imaging of her neck. While appellant still has some adhesive capsulitis with decreased range 

of motion of the shoulders, Dr. Brecher opined that it was mostly active, not passive, as she could 

reach 90 degrees actively, which was insufficient to preclude her from doing her job. He noted 

that her only physical limitation was an inability to work over shoulder height, which would not 

affect her ability to perform her job. Dr. Brecher opined that appellant reached maximum medical 

improvement (MMI) on October 8, 1997, when she had a physical capacity examination which 

indicated that she could return to her date-of-injury job. He recommended that she could return to 

work as her physical abilities appeared to match the physical requirements of her job description. 

Dr. White continued to diagnose cervical disc displacement with myelopathy, labral tear 

of the shoulder, adhesive capsulitis of the shoulder, and rotator cuff syndrome. 

OWCP determined that there was a conflict of medical opinion between appellant’s 

treating physician, Dr. White and the second opinion examiner, Dr. Brecher, regarding residuals 

of her accepted work-related conditions and level of disability. To resolve the conflict, it selected

Dr. Hythem P. Shadid, a Board-certified orthopedic surgeon, as the impartial medical specialist. 

OWCP provided him a copy of the medical record and an updated SOAF. The March 4, 2015 

SOAF noted that the case was accepted for neck strain, adhesive capsulitis of the left shoulder,

and post-traumatic brachial neuritis. 

In a November 30, 2015 report, Dr. Shadid reviewed the medical evidence of record, 

including the SOAF, and presented examination findings. He indicated that there was no objective 

 

7 Dr. Brecher reported that the SOAF indicated that the case was accepted for neck sprain, adhesive capsulitis of 

the left shoulder, and post-traumatic brachial neuritis. 
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evidence of a neck strain, left shoulder adhesive capsulitis, or a post-traumatic brachial neuritis. 

Dr. Shadid noted that, while appellant moved slowly, her cervical range of motion was age 

appropriate and pain free on examination. He noted that the normal September 1980 myelogram 

and normal cervical spine MRI scan supported his findings. 

With regard to the shoulders, Dr. Shadid noted that, while appellant did not appear to put 

forth much effort, both shoulders had symmetrical active range of motion. Passively, he was able 

to get both shoulders to 160 degrees of flexion and 90 degrees of external rotation with minimal 

difficulty. Dr. Shadid indicated that this range of motion was inconsistent with an adhesive 

capsulitis. Furthermore, an adhesive capsulitis is a self-limiting condition and the orthopedic 

literature showed that it tends to resolve in two years or less, even when untreated. Dr. Shadid 

opined that there was no evidence on examination for an adhesive capsulitis. The only findings 

were that of a mildly degenerated rotator cuff and anterior labrum, both of which are typical 

findings for a woman of appellant’s age. 

Dr. Shadid noted that the brachial neuritis was diagnosed based on subjective complaints 

only and at no point was there objective evidence for the condition over the years. He explained 

that appellant’s complaints of intermittent numbness over the years may have been due to a mild 

carpal tunnel syndrome rather than a brachial neuritis. Dr. Shadid indicated that there was no 

evidence of his examination of any neuritis brachial or otherwise. 

Dr. Shadid advised that none of appellant’s current subjective complaints were due to the 

work-related injury and throughout her medical history, subjective complaints were the only basis 

for the accepted conditions. He reiterated that there was no objective basis for any of the accepted 

conditions on examination. Dr. Shadid concluded that appellant no longer suffered from active 

residuals of the work-related injury and that she was able to perform her regular duties. He 

indicated that she had reached MMI on April 23, 1979, when she returned back to work, or within 

3.5 months of the accident. Dr. Shadid explained that the problem with Dr. White’s opinion, as 

with many others in this case, was that it was not based on the evidence. He noted that Dr. White

had failed to support his opinion with objective findings and provided no medical basis or rationale 

to establish that appellant’s diagnosed conditions were medically connected to the January 16, 

1979 employment injury. Dr. Shadid also indicated that, contrary to her claims of severe 

impairment to her right upper extremity and cervical spine, she was functioning well with all 

activities of daily living and that there was no significant impairment on examination when 

compared to other woman of her stated age. 

On February 1, 2017 OWCP notified appellant of its proposed termination of her wageloss compensation and medical benefits, based on Dr. Shadid’s opinion. It afforded her 30 days 

to submit additional evidence or argument. 

In response, appellant submitted a February 6, 2017 statement and bone scans from 2013 

which noted multiple levels of degenerative disc disease in the lumbar spine, retrolistheis at C3 on 

C4, slight scoliosis at lateral thoracic spine, and coarsening of the trabecular pattern of the sacrum

typical for Paget’s disease. 

By decision dated March 16, 2017, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective March 5, 2017, finding that the medical evidence of record 
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established that the accepted injuries had ceased without residuals or continued disability from 

work. It accorded Dr. Shadid’s opinion the special weight of the medical evidence. 

On March 27, 2017 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on July 12, 2017. 

OWCP received duplicative copies of evidence already of record,

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a July 10, 2017 

download request summary of diagnostic tests from May 1, 2013 through January 31, 2014; and a 

June 27, 2017 MRI scan of cervical spine, which noted multilevel cervical spondylosis with no 

acute findings, disc herniation, or central stenosis. 

In a July 15, 2017 letter, appellant asserted that her accepted medical conditions were 

permanent and that her symptoms had progressed. She indicated her belief that the physicians 

whom OWCP relied on in terminating her compensation benefits were invalid as they did not 

perform diagnostic tests and had reviewed outdated evidence. Appellant further contended that 

the reports from Dr. White and Dr. Sun established an ongoing need for treatment and disability. 

By decision dated September 12, 2017, an OWCP hearing representative affirmed 

OWCP’s termination decision. The hearing representative noted that no recent evidence from

Dr. White had been received to support a finding of total disability from appellant’s date-of-injury 

position or that she had any residuals from her work-related injuries.

On December 5, 2017 appellant requested reconsideration. In a November 25, 2017 letter, 

she stated that her claim had been accepted for neck strain, cervical and lumbosacral myositis; 

post-traumatic brachial neuritis; and adhesive capsulitis of right shoulder. Appellant contended 

that Dr. Shadid did not perform a complete examination as she was only observed or forced beyond 

her tolerance to perform certain tasks. Additionally, Dr. Shadid ignored her current medical 

conditions, did not have a complete list of her accepted medical conditions, or a complete medical 

history. Appellant indicated that on April 6, 1998 OWCP had expanded the acceptance of her 

claim to include the additional conditions of “neck strain, cervical and lumbosacral myositis, posttraumatic brachial neuritis, and adhesive capsulitis L shoulder.” 

Duplicative copies of evidence already of record were received. 

By decision dated February 28, 2018, OWCP denied appellant’s request for 

reconsideration as she had not raised an argument or submitted evidence sufficient to warrant 

further review of the merits under section 8128(a). It found that the submitted evidence was 

previously of record and reviewed and that she had not provided new evidence in support of her 

arguments.

 

8 This included December 7, 2009 right shoulder MRI scan, which revealed partial undersurface tear of the 

supraspinatus tendon, a suspicious tear of the anterior glenoid labrum, and mild degenerative joint disease of the 

acromioclavicular joint; a December 7, 2009 cervical spine MRI scan, which revealed multilevels of mild disc bulges 

without evidence of significant central canal stenosis or neural foraminal narrowing; Dr. Sun’s March 20, 2012 work 

capacity evaluation; correspondence form appellant to her claims examiners; an August 23, 2012 work capacity 

evaluation from Dr. White rendering appellant totally disabled. 
6

LEGAL PRECEDENT -- ISSUE 1

Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.9 Having determined that an employee has a 

disability causally related to his or her federal employment, OWCP may not terminate 

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

to the employment.10 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.11

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

entitlement for disability.12 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.13

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

making the examination for the United States and the physician of the employee, a third physician 

shall be appointed to make an examination to resolve the conflict.14 When there are opposing 

medical reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.15 

In situations where there are opposing medical 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 on a proper factual 

background, must be given special weight.

16

OWCP’s procedures provide as follows: 

“The [claims examiner] is responsible for ensuring that the SOAF is correct, 

complete, unequivocal, and specific. When the [district medical adviser], second 

opinion specialist, or referee physician renders a medical opinion based on an 

SOAF which is incomplete or inaccurate or does not use the SOAF as the 

 

9 Bernadine P. Taylor, 54 ECAB 342 (2003).

10 Id.

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

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

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

14 5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

15 Delphia Y. Jackson, 55 ECAB 373 (2004).

16 Anna M. Delaney, 53 ECAB 384 (2002).
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framework in forming his or her opinion, the probative value of the opinion is 

seriously diminished or negated altogether.”

17

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility to see that justice is done.18 The nonadversarial policy of proceedings 

under FECA is reflected in OWCP’s regulations at section 10.121.19 Once OWCP undertakes to 

develop the medical evidence further, it has the responsibility to do so in a proper manner.20

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for a decision. 

OWCP referred appellant to Dr. Shadid, a Board-certified orthopedic surgeon, to resolve 

the conflict of medical opinion between Dr. Brecher and Dr. White as to whether her disability 

had ceased. It based its decision to terminate her wage-loss compensation and medical benefits on

Dr. Shadid’s November 30, 2015 report. 

The Board finds however that Dr. Shadid’s report is insufficient to resolve the conflict 

between Dr. White and Dr. Brecher as it was based on an inaccurate SOAF. Specifically, OWCP 

had accepted an adhesive capsulitis of the right shoulder and had issued, on June 4, 1984, a 

schedule award for five percent permanent impairment to appellant’s right upper extremity. 

However, the SOAF issued to Dr. Shadid incorrectly noted that the accepted conditions included 

an adhesive capsulitis of the left shoulder, as opposed to the right shoulder. It also failed to mention 

that appellant was awarded a schedule award for a right upper extremity permanent impairment. 

While Dr. Shadid opined that she had no objective evidence of a neck strain, left shoulder adhesive 

capsulitis, or a post-traumatic brachial neuritis and provided rationale for his conclusions, his 

report IME report is not based on an accurate SOAF as it fails to state, with the necessary 

specificity, the accepted conditions in the claim.

21

 As such, the IME report is based on an 

inaccurate history and is of diminished probative value.22

When a second opinion or impartial medical specialist renders a medical opinion based on 

an incomplete or inaccurate SOAF, the probative value of the opinion is diminished or negated 

altogether.23 OWCP did not provide Dr. Shadid with an accurate SOAF including all accepted 

 

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

(October 1990).

18 Jimmy A. Hammons, 51 ECAB 219 (1999).

19 20 C.F.R. § 10.121.

20 See Melvin James, 55 ECAB 406 (2004).

21 See supra note 16.

22 See V.H., Docket No. 17-0439 (issued December 13, 2017); A.A., Docket No. 15-0937 (issued August 17, 2015).

23 See supra note 17; A.R., Docket No. 11-0692 (issued November 18, 2011). 
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conditions. Therefore, his report is not based on an accurate factual framework and cannot 

represent the weight of the medical evidence sufficient to terminate wage-loss compensation and 

medical benefits.

24

Once OWCP undertakes to develop the medical evidence, it has the responsibility to do so 

in a manner that will resolve the relevant issues in the case.25 Accordingly, the Board finds that 

the case must be remanded to OWCP. On remand, OWCP should prepare a complete and accurate 

SOAF and request that Dr. Shadid submit a clarifying report regarding residuals, if any, of 

appellant’s accepted work-related conditions and extent of disability. Following this and any 

further development deemed necessary, it shall issue a de novo decision. 

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical and compensation benefits, effective March 5, 2017.

26

 

24 Id.; see also G.W., Docket No. 13-1922 (issued July 29, 2014).

25 See R.B., Docket No. 14-1043 (issued December 12, 2014); V.H., Docket No. 14-0433 (issued July 3, 2014).

26 The Board finds that it is unnecessary to address the second issue in this case in view of the Board’s disposition 

of the first issue.
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ORDER

IT IS HEREBY ORDERED THAT the February 28, 2018 and September 12, 2017 

decisions of the Office of Workers’ Compensation Programs are reversed.

Issued: December 20, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board