United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Concord, NC, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-1723

Issued: August 24, 2020

Appearances: Case Submitted on the Record

Erik B. Blowers, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On August 14, 2019 appellant, through counsel, filed a timely appeal from a June 18, 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.

ISSUES

The issues are: (1) whether appellant has established that the acceptance of her claim 

should be expanded to include additional conditions as a result of her accepted employment injury;

 

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

and (2) whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective June 18, 2019. 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On December 6, 2012 appellant, then a 37-year-old sales distribution clerk, filed a 

traumatic injury claim (Form CA-1) alleging that, on that date, she injured her right shoulder when 

she lifted a package out of a cage while in the performance of duty. On December 27, 2013 OWCP 

accepted the claim for right shoulder strain and authorized right shoulder arthroscopic rotator cuff 

repair, which was performed on July 30, 2014. It paid appellant wage-loss compensation on the 

periodic rolls as of July 31, 2014.

In a letter dated September 29, 2017, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits based on a September 13, 2017 report from Dr. Joseph 

Estwanik, a second opinion Board-certified orthopedic surgeon. By decision dated December 4, 

2017, it terminated her wage-loss compensation and medical benefits, effective December 1, 2017, 

finding that the weight of the medical opinion evidence rested with Dr. Estwanik.

On March 6, 2018 appellant, through counsel, requested reconsideration. By decision 

dated May 8, 2018, OWCP denied modification of the December 4, 2017 decision. It also noted 

that counsel had requested expansion of appellant’s claim to include right rotator cuff tear.

On June 19, 2018 appellant, through counsel, appealed to the Board. By decision dated 

March 22, 2019, the Board reversed in part and set aside in part OWCP’s May 8, 2018 decision.4 

The Board reversed the termination of appellant’s wage-loss compensation and medical benefits 

as it found OWCP had not met its burden of proof to terminate her benefits effective 

December 1, 2017. The Board found Dr. Estwanik’s opinion of diminished probative value 

insufficient to support OWCP’s burden of proof since it was unclear whether his opinion was on 

an accurate SOAF. The Board further found that the claim was not in posture for a decision as to 

whether acceptance of the claim should be expanded to include a consequential right rotator cuff 

tear. The case was remanded to OWCP to request that Dr. Estwanik provide a supplemental report 

which addressed whether acceptance of appellant’s claim should be expanded to include additional 

conditions.

Following the Board’s decision, on May 3, 2019, OWCP paid appellant wage-loss 

compensation on the supplemental rolls for the period December 1, 2017 through April 27, 2019. 

On May 25, 2019 it paid her wage-loss compensation on the periodic rolls commencing

April 28, 2019.

 

3 Docket No. 18-1300 (issued March 22, 2019).

4

Id.
3

On May 3, 2019 OWCP prepared a new SOAF and on May 9, 2019 OWCP again referred 

appellant for a second opinion examination with Dr. Estwanik for an assessment of her workrelated condition including whether her claim should be expanded to include additional conditions 

due to the accepted December 6, 2012 employment injury.

Dr. Estwanik, in a June 5, 2019 supplemental report, noted his review of additional medical 

records and he provided examination findings. Based on his review of medical evidence from 

September 13, 2017, Dr. Estwanik suggested that the rotator cuff repair surgery was unrelated to 

the accepted December 6, 2012 employment injury. In support of this conclusion he noted that 

the July 30, 2014 surgical report confirmed intact rotator cuff muscles and a magnetic resonance 

imaging (MRI) scan demonstrated no tearing of the rotator cuff. Dr. Estwanik referenced 

additional records, which he described as repetitive, confirmed intact rotator cuff muscles and 

tendons. He again opined that appellant was capable of performing her date-of-injury job and that 

her accepted right shoulder strain had resolved with no residuals.

By decision dated June 18, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that date, based on Dr. Estwanik’s opinion that she no longer had 

any disability or residuals due to her accepted right shoulder sprain.

LEGAL PRECEDENT -- ISSUE 1

When an employee claims that a condition not accepted or approved by OWCP was due to 

an employment injury, he or she bears the burden of proof to establish that the condition is causally 

related to the employment injury.

5

To establish causal relationship between a condition and the employment event or incident, 

the employee must submit rationalized medical opinion evidence based on a complete factual and 

medical background, supporting such a causal relationship.6 The opinion of the physician must be 

based on a complete factual and medical background of the claimant, must be one of reasonable 

medical certainty, and must be supported by medical rationale explaining the nature of the 

relationship between the diagnosed condition and the specific employment factors identified by 

the claimant.7

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for a decision as to whether appellant’s 

claim should be expanded to include additional conditions causally related to the accepted 

December 6, 2012 employment injury.

 

5 See S.L., Docket No. 19-0603 (issued January 28, 2020); T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., 

Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

6 See S.L., id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7 See S.L., supra note 5; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued 

October 11, 2018).
4

On prior appeal, the Board remanded the case for OWCP to obtain a supplemental report 

from Dr. Estwanik addressing whether appellant’s claim should be expanded to include additional 

conditions due to the accepted December 6, 2012 employment injury. On remand, OWCP 

requested that Dr. Estwanik provide an opinion as to whether the claim should be expanded to 

include additional conditions as work related. In his June 5, 2019 report, Dr. Estwanik failed to 

provide an opinion on the issue which was the basis for the Board’s prior remand. As OWCP 

undertook development of the issue of claim expansion, it had the responsibility to resolve the 

issue. Once OWCP undertook development of the evidence by referring appellant back to the 

second opinion physician, it had an obligation to do a complete job and obtain a proper evaluation 

and report that would resolve the issue in this case.8 

The case must therefore be remanded for consideration of whether acceptance of 

appellant’s claim should be expanded to include additional conditions as causally related to the 

accepted December 6, 2012 employment injury. Appellant shall be referred to a new second 

opinion physician to opine the issue of whether the claim should be expanded to include additional 

conditions as work related. Following this and such further development as deemed necessary, 

OWCP shall issue a de novo decision.

LEGAL PRECEDENT -- ISSUE 2

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

modification or termination of an employee’s benefits.9 It may not terminate compensation 

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

injury.10 OWCP’s burden of proof in terminating compensation 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 to compensation for disability.12 To terminate authorization for medical treatment, 

OWCP must establish that the employee no longer has residuals of an employment-related 

condition that require further medical treatment.13

 

8 M.S., Docket No. 19-1401 (issued July 8, 2020); T.N., Docket No. 10-1810 (issued May 25, 2011).

9 S.P., Docket No. 19-0196 (issued June 24, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 

ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

10 See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); 

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

11 D.G., supra note 9; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-

96 (1988).

12 S.P., supra note 9; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued 

February 27, 2019).

13 D.G., supra note 9; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued 

February 5, 2019).
5

ANALYSIS -- ISSUE 2

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 18, 2019.

The Board has held that compensation benefits constitute a property interest protected by 

the due process clause.14 Pursuant to OWCP’s procedures, before terminating appellant’s wageloss compensation and medical benefits, the claims examiner was responsible for advising her of 

the proposed termination or reduction, the reasons for the proposed action, and of an opportunity 

to respond in writing.15 Pretermination notices are required in cases in which compensation is 

being paid on the periodic rolls16 and are also required in cases where all medical benefits are being 

terminated based on the medical opinion of a referee or second opinion physician.17 The Board 

has held that OWCP must follow its procedures and provide notice and opportunity to respond 

prior to the termination of compensation benefits.18

The Board finds that when OWCP terminated appellant’s benefits on June 18, 2019 she 

had again received wage-loss compensation on the periodic rolls as of May 25, 2019. 

Furthermore, OWCP terminated her medical benefits based upon Dr. Estwanik’s report. However, 

based upon the Board’s ruling as to Issue 1, as well as because appellant should have received 

proper pretermination notification as she was being paid wage-loss compensation on the periodic 

rolls and medical benefits, the termination must be reversed. OWCP should have provided her 

with notice that it intended to terminate her wage-loss compensation and medical benefits, and 

OWCP should have provided her an opportunity to submit evidence supporting continuing 

employment-related residuals of her accepted condition.19 It should have also fully developed the 

issue of claim expansion and whether the additional conditions, if any, resulted in continuing 

disability from work.

Due process and elemental fairness require that a claimant under the circumstances 

presented have notice and an opportunity to respond to the termination of benefits.20 The Board 

finds that the termination was improper and will be reversed.

 

14 C.A., Docket No. 18-0470 (issued March 7, 2019); Felix Voyles, 46 ECAB 895 (1995).

15 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(b) (February 2013);

see also Winton A. Miller, 52 ECAB 405 (2001).

16 J.S., Docket No. 17-0937 (issued December 14, 2017). 

17 Id.

18 S.S., Docket No. 19-1091 (issued December 3, 2019); supra note 15.

19 Id.; K.S., Docket No. 11-2021 (issued August 21, 2012).

20 S.S., supra note 18; D.R., Docket No. 14-1688 (issued April 8, 2015).
6

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 18, 2019. The Board further finds that this 

case is not in posture for decision as to whether acceptance of the claim should be expanded to 

include additional conditions as a result of her accepted employment injury.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated June 18, 2019 is reversed in part, set aside in part, and the case is remanded for 

further action consistent with this decision of the Board.

Issued: August 24, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board