United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Albany, OR, Employer

__________________________________________

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Docket No. 19-0711

Issued: October 17, 2019

Appearances: Case Submitted on the Record

Howard L. Graham, 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 19, 2019 appellant, through counsel, filed a timely appeal from a January 11, 

2019 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 January11, 2019 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

ISSUES

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

wage-loss compensation and medical benefits, effective February 15, 2018, as she no longer had 

residuals or disability causally related to her accepted April 11, 2017 employment injury; and 

(2) whether appellant has met her burden of proof to establish employment-related continuing 

residuals or disability on or after February 15, 2018.

FACTUAL HISTORY

On April 24, 2017 appellant, then a 50-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on April 11, 2017 she sustained a left shoulder and upper arm injury 

when she lifted a heavy parcel from her delivery vehicle while in the performance of duty. She 

experienced the immediate onset of severe left shoulder pain, but continued working through 

April 14, 2017, when she stopped work and did not return. Appellant received continuation of pay 

(COP) through May 26, 2017.

On August 31, 2017 OWCP accepted the claim for strain of muscle, fascia, and tendon at 

neck level, initial encounter.

In reports dated August 31, 2017, Dr. Jeffrey Johnson, a Board-certified neurosurgeon, 

provided a history of injury and treatment. He noted an impression of left upper extremity pain 

and nonspecific degenerative changes. Dr. Johnson held appellant off work.

In a September 13, 2017 report, Dr. Johnson opined that a May 21, 2017 magnetic 

resonance imaging (MRI) scan of the cervical spine showed “chronic-appearing degenerative 

changes at C5-6, including spondylosis,” retrolisthesis, and pronounced bilateral foraminal 

narrowing with possible C6 nerve root impingement. He recommended a C5-6 epidural steroid 

injection to clarify how the April 11, 2017 employment injury had contributed to appellant’s 

degenerative disc disease and foraminal stenosis. Dr. Johnson held appellant off work through 

October 31, 2017. 

A September 20, 2017 MRI scan of the left shoulder demonstrated a partial thickness 

undersurface tear versus tendinopathy of the anterior fibers of the supraspinatus tendon without 

retraction of muscle atrophy, subscapularis tendinopathy, and possible subdeltoid bursitis. 

In a report dated October 2, 2017, Dr. Richard W. Tobin, a Board-certified orthopedic 

surgeon, opined that the partial thickness supraspinatus tear demonstrated on a September 20, 2017 

MRI scan and possible underlying impingement of the left shoulder may have been exacerbated 

by the April 11, 2017 employment injury. He restricted appellant to light duty.

In an October 3, 2017 report, Dr. Joseph Stapleton, Board-certified in anesthesia and pain 

management, diagnosed a cervical disc disorder with radiculopathy, and “cervical strain of muscle, 

fascia, tendon, initial encounter.”

On November 1, 2017 OWCP referred appellant for a second opinion to Dr. Mary 

Cunningham, a Board-certified orthopedic surgeon. It requested that Dr. Cunningham provide an 

opinion regarding whether appellant continued to have residuals or disability due to her accepted 

April 11, 2017 employment injury. 
3

In a November 11, 2017 report, Dr. Cunningham detailed appellant’s factual and medical 

history and described her current complaints, including bilateral biceps and triceps pain, worse on 

the left; stabbing and burning sensations in the left triceps; tingling in the dorsum of the middle 

finger, left greater than right; pain radiating from her neck into the left triceps and left hand in a 

C7 nerve distribution; and a pulling sensation in the left trapezial region. She reported the findings 

of the physical examination noting limited cervical and bilateral shoulder motion, decreased 

sensation in the left C7 and C8 dermatomes, a positive Spurling’s sign on the left, and negative 

Hawkins’, Neer’s, and O’Brien’s signs on the left for shoulder symptomatology. Dr. Cunningham 

diagnosed possible cervical radiculopathy, significant cervical degenerative disc disease, and 

degenerative changes in the left shoulder. She opined that these conditions were unrelated to the 

April 11, 2017 employment injury. Dr. Cunningham noted that she had been followed by a 

chiropractor for neck pain prior to the accepted injury. She opined that appellant’s idiopathic 

spinal conditions had progressed to radiculopathy in accordance with the anticipated course of the 

disease, unrelated to the April 11, 2017 cervical sprain which should have resolved without 

residuals within six weeks. Dr. Cunningham returned appellant to full-time, light-duty work with 

restrictions necessitated by her nonoccupational conditions. 

In a report dated December 26, 2017, Dr. Johnson diagnosed C5-6 cervical radiculopathy 

and cervicalgia. 

By decision dated December 4, 2017, OWCP denied expansion of the claim to include 

bilateral shoulder impingement syndrome and cervical disc disease as the medical evidence of 

record had not demonstrated that the diagnosed conditions were causally related to the accepted 

April 11, 2017 cervical strain.

Appellant filed claims for wage-loss compensation (Form CA-7) for periods of total 

disability commencing June 7, 2017. OWCP denied the claims in a series of decisions 

commencing December 5, 2017 finding the medical evidence of record had not established total 

disability due to the accepted April 11, 2017 injury, based on Dr. Cunningham’s opinion as the 

weight of the medical evidence.4

In a January 9, 2018 letter, OWCP advised appellant of its proposed termination of her 

medical benefits, finding that she ceased to have residuals of her April 11, 2017 employment 

injury. It informed her that the termination was justified by the opinion of Dr. Cunningham. 

OWCP afforded appellant 30 days to submit evidence and argument challenging the proposed 

action. In response, counsel submitted a February 2, 2018 statement contending that OWCP failed 

to develop the medical evidence and noted its authorization for a cervical injection. 

In a February 5, 2018 work slip, Dr. Johnson held appellant off work through 

March 18, 2018. Dr. Stapleton performed an authorized left C5-6 transforaminal epidural steroid 

injection on February 6, 2018.

 

4 OWCP issued decisions on the following dates: January30, 2018 for the periods June7 to 16, 2017; October 13, 

2017 for the period June 24 to August 6, 2017; September 4 to 17, and October 2 to November 26, 2017; December 5, 

2017 for the period August 7 to September 3, 2017; December 6, 2017 for the period August7 to 20, 2017; January 5, 

2018 for the period September 18 to October 1, 2017; March 22, 2018 for the period December 25, 2017 to January 21, 

2018; July 20, 2018 for the period November 27 to December 24, 2017.
4

By decision dated February 20, 2018, OWCP terminated appellant’s entitlement to wageloss compensation and medical benefits, effective February 15, 2018. It determined that its 

termination was justified by the opinion of Dr. Cunningham. 

On July 10, 2018 appellant, through counsel, requested reconsideration. In letters dated 

June 26, and July 16 and 26, 2018, counsel contended that the opinions of appellant’s physicians 

established ongoing disability causally related to the April 11, 2017 employment injury. Counsel 

submitted additional medical evidence.

In a February 1, 2018 report, Dr. Johnson held appellant off work and recommended a C5-6 

epidural steroid injection, performed on February 21, 2018 by Dr. Stapleton. In a report dated 

May 17, 2018, he recommended a C5-6 anterior discectomy and fusion. In a May 21, 2018 report 

and July 11, 2018 addendum, Dr. Johnson opined that the accepted April 11, 2017 employment 

injury contributed to C6 radiculopathy and foraminal stenosis, disabling her for work through 

July 2018.

On June 5, 2018 Dr. Johnson performed a C5-6 discectomy and decompression with 

placement of interbody cage and fixation plates. 

By decision dated January 11, 2019, OWCP denied modification of its February 20, 2018 

decision. It determined that the February 20, 2018 termination action was proper and found that, 

since the time of termination, appellant had not established continuing residuals or disability 

causally related to her accepted employment injury. OWCP determined that the additional medical 

evidence submitted on reconsideration was of limited probative value with respect to continuing 

employment-related disability/residuals.

LEGAL PRECEDENT -- ISSUE 1

Under FECA, once OWCP has accepted a claim it has the burden of proof to justify 

termination or modification of compensation benefits.5 OWCP may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment. 6 

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

evidence based on a proper factual and medical background.7

 

5 L.G., Docket No. 19-0142 (issued August 8, 2019); C.C.,Docket No. 17-1158 (issued November 20, 2018); I.J.,

59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).

6 A.D., Docket No. 18-0497 (issued July 25, 2018). In general the term disability under FECA means incapacity 

because of injury in employment to earn the wages which the employee was receiving at the time of such injury. See

20 C.F.R. § 10.5(f).

7 L.G., supra note 5; R.P.,Docket No. 17-1133 (issued January 18, 2018).
5

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.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 15, 2018.

The evidence of record establishes that there is disagreement between Dr. Cunningham, 

the second opinion physician, and Dr. Johnson, appellant’s treating physician, as to whether 

appellant had residuals or disability from her accepted April 11, 2017 cervical strain as of 

February 15, 2018. Dr. Cunningham found in her November 11, 2017 report that appellant’s 

symptoms from the accepted injury should have ceased within six weeks, and that any subsequent 

complaints were related only to preexisting, idiopathic degenerative disc disease. In contrast,

Dr. Johnson opined that the employment injury had exacerbated appellant’s preexisting cervical 

degenerative disc disease and foraminal stenosis and that additional studies were required to fully 

evaluate that causal relationship. He held appellant off work from August 31, 2017 onward due 

to C5-6 radiculopathy and cervicalgia with the onset of severe symptoms following the April 11, 

2017 employment injury. The two physicians thus disagree on the nature and extent of a period 

of disability caused by the accepted injury.

The Board finds that an unresolved conflict of medical evidence remains between the 

opinions of Dr. Cunningham and Dr. Johnson on whether appellant had continuing residuals or 

disability from the accepted condition. The reports are based on a proper history of injury, provide 

physical findings, and address the issue of causal relationship between the April 11, 2017 

employment injury and her diagnosed conditions.

Thus, the Board finds that OWCP did not meet its burden of proof in terminating 

appellant’s compensation benefits.9

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 15, 2018.

 

8

5 U.S.C. § 8123(a). See also G.B., Docket No. 16-0996 (issued September 14, 2016) (where the Board held that 

OWCP improperly terminated the claimant’s wage-loss compensation and medical benefits as there was an unresolved 

conflict of medical opinion between her treating physician and a second opinion specialist). 

9

In light of the Board’s disposition in issue one, issue two is rendered moot.
6

ORDER

IT IS HEREBY ORDERED THAT the January 11, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: October 17, 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