United States Department of Labor

Employees’ Compensation Appeals Board

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D.M., Appellant

and

SMITHSONIAN INSTITUTION, NATIONAL 

ZOOLOGICAL PARK, Washington, DC, 

Employer

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Docket No. 19-0749

Issued: August 19, 2019

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 11, 2019 appellant, through counsel, filed a timely appeal from an August 30, 

2018 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.3

 

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.

3 The Board notes that following the August 30, 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
2

ISSUE

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

compensation and medical benefits, effective September 16, 2018, as she no longer had residuals 

or disability causally related to her June 5, 1996 employment injury.

FACTUAL HISTORY

On June 6, 1996 appellant, then a 34-year-old animal caretaker, filed a traumatic injury 

claim (Form CA-1) alleging that on June 5, 1996 she sustained injuries to her left shoulder and 

neck when she used the shift doors (overhead pulley) to move and shift animals at the zoo while 

in the performance of duty. She stopped work on June 7, 1996. OWCP assigned the claim File 

No. xxxxxx035 and accepted “other affections of the left shoulder region.”

4

 It commenced wageloss compensation benefit payments on the supplemental rolls, effective August 6, 1996. 

On November 12, 1996 appellant underwent OWCP-approved left shoulder acromioplasty, 

subacromial decompression, and resection of the distal clavicle with Dr. Sheldon Mandel, a Boardcertified orthopedic surgeon.

After completing vocational rehabilitation services, appellant returned to work full time on 

February 2, 2004 as a customer service representative/clerk at a tack shop.

5

On December 22, 2004 OWCP found that appellant was no longer totally disabled and 

finalized the reduction of her wage-loss compensation based upon her capacity to earn wages of 

$280.00 per week as a customer service representative/clerk. The loss of wage-earning capacity 

(LWEC) determination found that the position fairly and reasonably represented her wage-earning 

capacity and was vocationally suitable since she had performed the duties of the job for the past 

two months.

On March 19, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), the case file, and a set of questions, to Dr. Robert Moore, a Board-certified orthopedic 

surgeon, for a second opinion examination regarding the status of her June 5, 1996 employment 

injury. The SOAF, dated December 2, 2014, noted that appellant’s claim was accepted for other 

affections of the left shoulder region. It indicated that she had been employed as a plant and animal 

worker, but currently worked as a hostess/server.

In a May 10, 2018 report, Dr. Moore noted his review of the SOAF and indicated that there 

were limited medical records regarding appellant’s initial medical treatment for her June 5, 1996 

employment injury. He reported that appellant’s claim was accepted for left shoulder impingement 

syndrome and related her current complaints of occasional left shoulder pain. Upon physical 

examination, Dr. Moore observed mild tenderness over the anterior aspect of the left shoulder and 

no atrophy. He provided range of motion (ROM) measurements and related appellant’s complaints 

of mild discomfort at the end ranges of abduction and internal rotation. Impingement sign was 

 

4 Under OWCP File No. xxxxxx128, appellant has an accepted traumatic injury claim for bilateral shoulder 

impingement syndrome, which arose in the performance of duty on November 24, 1995. OWCP combined File Nos. 

xxxxxx128 and xxxxxx035 and designated the latter claim as the master file.

5 OWCP adjusted her wage-loss compensation benefits to reflect her actual earnings of $280.00 per week. 
3

negative. Dr. Moore diagnosed a history of subacromial impingement and partial rotator cuff tear 

of the left shoulder, improved following arthroscopic subacromial decompression and distal 

clavicle excision. 

In response to OWCP’s questions, Dr. Moore opined that appellant’s accepted left shoulder 

subacromial impingement had completely resolved. He explained that there were no objective 

findings to support that her work-related conditions were still active. Dr. Moore noted that 

appellant had full ROM and negative impingement signs. He reported that appellant currently had 

no work restrictions due to her accepted left shoulder condition and was capable of returning to 

her date-of-injury job as an animal caretaker.

On July 18, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits because she no longer had residuals or disability due to her June 5, 1996 

employment injury. It found that the weight of medical evidence rested with Dr. Moore’s May 10, 

2018 second opinion report, which noted that appellant’s work-related condition and disability 

causally related to the June 5, 1996 employment injury had ceased. OWCP explained that the 

medical evidence of record was sufficient to meet its burden of proof to terminate benefits and was 

also sufficient to negate an LWEC determination due to a material change in her medical condition. 

It provided appellant 30 days to submit additional evidence and argument if she disagreed with the

proposed termination.

In an August 9, 2018 letter, appellant related that her June 5, 1996 injury was accepted for 

other affections of both shoulders. She claimed that she was diagnosed with bilateral impingement 

syndrome. Appellant discussed the medical treatment she received for both shoulders and 

indicated that, after extensive physical therapy, her physician had informed her that her injury was 

“career ending” due to the 100-pound lifting requirement for an animal caretaker. She alleged that 

if she were to work as an animal caretaker, the injury would eventually return in a more severe 

state.

By decision dated August 30, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective September 16, 2018, finding that the weight of 

the medical opinion evidence rested with Dr. Moore, the second opinion examiner, who concluded 

in a May 10, 2018 report that appellant ceased to have residuals or disability due to her accepted 

June 5, 1996 employment injury.6

LEGAL PRECEDENT 

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

termination or modification of compensation benefits.7 It may not terminate compensation without 

establishing that the disability had ceased or that it was no longer related to the employment.8 

 

6 OWCP further found that, since it determined that she no longer had residuals of her accepted work-related injury 

and was no longer disabled from work as a result of the accepted injury, formal modification of her LWEC 

determination was unnecessary. 

7 A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 

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

8 A.G., Docket No. 18-0749 (issued November 7, 2018); see also Jason C. Armstrong, 40 ECAB 907 (1989); 

Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
4

OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion 

evidence based on a proper factual and medical background.9 The right to medical benefits for an 

accepted condition is not limited to the period of entitlement for disability compensation.10 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.11 

It is OWCP’s responsibility to provide a complete and proper frame of reference for a 

physician by preparing a SOAF.12 Its procedures provide that the claims examiner is responsible 

for ensuring that the SOAF is correct, complete, unequivocal, and specific. 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.13

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 16, 2018.

In his May 10, 2018 report, Dr. Moore, an OWCP second opinion examiner, reviewed the 

SOAF provided by OWCP and noted that appellant’s claim had been accepted for left shoulder 

impingement syndrome. He provided examination findings and opined that appellant’s workrelated left shoulder condition had completely resolved. Dr. Moore reported that appellant was 

capable of returning to her date-of-injury position as an animal caretaker. 

The Board finds, however, that OWCP improperly terminated appellant’s compensation 

based on Dr. Moore’s report because his opinion on her disability status was based on a deficient 

SOAF. In securing the opinion of a medical specialist, OWCP provided information through the 

preparation of the SOAF in order to ensure that the report was based on a proper factual 

background.

14

 Its procedures require that the SOAF include appellant’s accepted conditions.15 In 

this case, however, the December 2, 2014 SOAF did not note that appellant had a previously 

accepted claim under OWCP File No. xxxxxx128 for bilateral impingement syndrome or that 

previous claim and current claim had been combined. As the SOAF was deficient, Dr. Moore’s 

 

9 R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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

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

12 N.W., Docket No. 16-1890 (issued June 5, 2017); K.V., Docket No. 15-0960 (issued March 9, 2016).

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

(October 1990); see also R.P., Docket No. 18-0900 (issued February 5, 2019).

14 FECA Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4(a)(4) 

(September 2009); M.C., Docket No. 18-1199 (issued April 5, 2019).

15 Id. 
5

opinion was not based on a proper history or background because the SOAF failed to address all 

of appellant’s accepted conditions under her previous claim.

16

 

The Board finds, therefore, that OWCP erred in terminating appellant’s wage-loss 

compensation and medical benefits, effective September 16, 2018, based on Dr. Moore’s May 10, 

2018 second opinion report.17 

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 16, 2018.

ORDER

IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

16 See N.G., Docket No. 15-0567 (issued April 27, 2015).

17 S.B., Docket No. 18-0700 (issued January 9, 2019).