United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.T., Appellant

and

DEPARTMENT OF THE ARMY, MADIGAN 

ARMY MEDICAL CENTER, JOINT BASE 

LEWIS-McCHORD, WA, Employer

__________________________________________

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Docket No. 18-1302

Issued: October 22, 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

JANICE B. ASKIN, Judge

JURISDICTION

On June 18, 2018 appellant, through counsel, filed a timely appeal from a May 23, 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.

ISSUES

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

wage-loss compensation and medical benefits, effective October 2, 2017, as she no longer had

 

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

residuals or disability causally related to her accepted employment injuries; and (2) whether 

appellant has met her burden of proof to establish residuals or disability causally related to her 

accepted employment injuries after October 2, 2017.

FACTUAL HISTORY

On April 13, 2011 appellant, then a 41-year-old assistant program manager, filed an 

occupational disease claim (Form CA-2) alleging that she sustained injuries to her upper 

extremities and neck due to her federal employment duties including typing on a computer and a 

hand-held device. She indicated that she first became aware of her alleged injury on June 1, 2008 

and first realized its relation to her federal employment on September 1, 2010. Appellant stopped 

work on April 15, 2011.

3

In July 2011 OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and 

enthesopathy of the right wrist/carpus. On September 26, 2011 appellant underwent right carpal 

tunnel release surgery and, on January 16, 2012, she underwent left carpal tunnel release surgery. 

OWCP authorized both surgeries.4

Between 2012 and 2014 OWCP developed the medical evidence by referring appellant for 

multiple second opinion evaluations. Based on this development, it expanded the accepted 

conditions to include bilateral cubital tunnel syndrome, bilateral de Quervain’s tenosynovitis, and 

a single episode of major depression (moderate-to-severe).5

In July 2016 OWCP referred appellant to Dr. Aaron Hunt, a Board-certified psychiatrist, 

for a second opinion examination and requested that Dr. Hunt provide an opinion regarding 

whether appellant continued to have residuals of her accepted employment-related emotional 

condition, a single episode of major depression (moderate-to-severe).6

In an August 23, 2016 report, Dr. Hunt discussed appellant’s history of emotional problems 

and reported the findings of his psychological evaluation. He indicated that, during the evaluation, 

appellant related her emotional problems to her belief that she had worked in a hostile work 

environment at the employing establishment. Dr. Hunt reported that her speech demonstrated 

normal rate, volume, and articulation, and that her cognitive presentation was intact. He noted that 

appellant briefly exhibited tearfulness when discussing issues during the evaluation, but that she 

otherwise maintained a fairly neutral mood. Dr. Hunt advised that appellant was a poor historian 

 

3 Appellant retired from federal service effective February23, 2012.

4 OWCP paid appellant wage-loss compensation on the daily rolls commencing April 15, 2011 and on the periodic 

rolls commencing January 15, 2012.

5 As part of a second opinion examination in mid-2013, OWCP provided the OWCP referral physician with a copy 

of a surveillance video, obtained by the employment establishment on June 24, 2013, which showed appellant holding 

a mobile phone and typing on it. Counsel, on behalf of appellant, requested a copy of the surveillance video and, in 

January 2014, counsel received a copy for inspection.

6 OWCP providedDr.Hunt with a document entitled, “questions to the second opinion examiner,” which posed 13 

questions for him to answer regarding appellant’s emotional condition.
3

regarding her psychological condition and he indicated that her conversation was driven by her 

own concerns.

Under the Axis I category, Dr. Hunt diagnosed a single episode of major depressive 

disorder (moderate-to-severe, administratively accepted), which had resolved with regard to the 

industrial injury; adjustment disorder with depressed and anxious mood, unrelated, primarily 

related to occupational factors; pain disorder, associated with psychological factors, unrelated; and 

rule out factitious disorder versus malingering. Under the Axis II category, he noted that he was 

deferring a diagnosis and indicated, “Though I would recommend that [sic] either the MMPI 

(Minnesota Multiphasic Personality Inventory) [or] Millon testing to address underlying 

psychological dysfunction. Clarification would be related, because it would help clarify Axis I 

diagnoses.” Dr. Hunt indicated that the only way to relate appellant’s major depression to the 

accepted employment injuries would be to relate it to an actual existing physical injury, and he 

advised that the evidence of record no longer showed that such an injury existed.

7

 He determined 

that appellant could return to her regular work from a psychiatric standpoint and advised that any 

depression or psychiatric dysfunction she was experiencing was not due to the accepted industrial 

injury.

In a September 8, 2016 work capacity form (Form OWCP-5c), Dr. Hunt checked a box 

marked “Yes” indicating that appellant could perform her usual job, and he added the notation, 

“Psychiatrically, related to the injury, yes.”

In a September 13, 2016 letter to Dr. Hunt, OWCP noted that he had indicated in his 

August 23, 2016 report that he was deferring an Axis II diagnosis and was recommending that 

either MMPI or Millon testing be performed in order to address appellant’s underlying 

psychological dysfunctions. It requested that Dr. Hunt proceed with such testing and, after 

completion of the testing, to “revisit your responses to the 13 questions posed in this case and 

please revise any response as needed.”

The findings of October 5, 2016 upper extremity electromyogram and nerve conduction 

velocity (EMG/NCV) testing contained an impression of mild residual bilateral carpal tunnel 

syndrome (median nerve entrapment at the wrists) affecting sensory components and no 

electrodiagnostic evidence of bilateral cubital tunnel syndrome.

In April 2017 OWCP referred appellant to Dr. Eric Rudd, a Board-certified orthopedic 

surgeon, for a second opinion examination and requested that Dr. Rudd provide an opinion 

regarding whether appellant continued to have residuals or disability causally related to her 

accepted upper extremity injuries.

8

In a May 22, 2017 report, Dr. Rudd discussed appellant’s factual and medical history and 

noted that she complained of pain in her neck and multiple locations in her upper and lower 

 

7 Dr. Hunt indicated that appellant’s belief that she had adversarial relationships with supervisors appeared to be 

the primary reason she “sustained depressive illness over time.”

8 OWCP provided Dr.Rudd with a copy of June 2013 surveillance video.
4

extremities.9 He reported physical examination findings and indicated that appellant’s shoulder 

regions could barely be palpated due to exquisite trigger-point tenderness (right greater than left), 

particularly in the trapezial areas. Dr. Rudd characterized appellant’s pain responses to testing as 

being more globally myofascial in origin than mechanical. Appellant could barely be palpated in 

any area of her upper extremities due to exquisite pain responses which were immediate in nature. 

Dr. Rudd could not identify true dermatomal or myotomal deficits in connection with these pain 

responses.10 He reported that appellant exhibited diffuse tenderness in both elbows and forearms, 

and that she complained of diffuse right thumb pain extending into the first web space/thenar 

eminence which was not well localized in an anatomic structure.

Dr. Rudd concluded that appellant’s employment-related bilateral carpal tunnel syndrome 

had resolved. He opined that appellant did not then have bilateral cubital syndrome because the 

most recent EMG/NCV testing had not shown the presence of the condition and the Tinel’s sign 

testing he carried out produced pain, but no paresthesias. Dr. Rudd further found that appellant

did not then have bilateral de Quervain’s tenosynovitis because Finkelstein’s sign testing yielded 

negative results and she exhibited tenderness in multiple soft tissue zones of the wrists rather than 

only in the first dorsal compartments. He also diagnosed fibromyalgia which he identified as the 

source of appellant’s diffuse pain complaints, but he indicated that he did not believe this condition 

was related to her accepted employment injuries. Dr. Rudd noted that it was difficult to relate a

widespread myofascial pain syndrome, such as fibromyalgia, to appellant’s “structural 

injury/overuse on the job.” He determined that, based on objective orthopedic findings, she could 

return to her regular duties as an assistant program manager without restrictions.11 In a June 8, 

2017 work capacity form (Form OWCP-5c), Dr. Rudd checked a box marked “Yes” indicating

that appellant could perform her usual job without restrictions.

In a July 19, 2017 letter, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits because she ceased to have residuals and disability 

causally related to her accepted employment injuries. It informed appellant that the proposed 

termination action was based on the opinions of Dr. Rudd and Dr. Hunt, OWCP’s referral 

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

proposed termination action.

In response, counsel argued in an August 14, 2017 document that Dr. Rudd and Dr. Hunt 

had not provided adequate medical rationale in their reports to explain why appellant ceased to 

have residuals or disability due to her accepted employment injuries. 

By decision dated October 2, 2017, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective October 2, 2017, as she no longer had residuals or disability 

causally related to her accepted employment injuries. It found that the weight of the medical 

 

9 Dr. Rudd indicated that the June2013 surveillance video showed appellant using a mobile phone and typing on 

it. He provided a summary of the medical evidence in the case record and noted that October 5, 2016 EMG/NCV 

testing contained an impression of mild residual bilateral carpal tunnel syndrome affecting sensory components.

10 Dr. Rudd advised that Finkelstein’s sign testing of appellant’s wrists yielded negative results.

11 Dr. Rudd also noted, “Based on her subjective complaints with widespread pains reaching 10/10, work will be 

problematic.”
5

evidence with respect to employment-related residuals/disability rested with the well-rationalized 

opinions of Dr. Rudd and Dr. Hunt. 

On October 23, 2017 appellant, through counsel, requested an oral hearing with a 

representative of OWCP’s Branch of Hearings and Review.

During the hearing, held on February 14, 2018, counsel argued that the opinions of the 

OWCP referral physicians did not contain adequate medical rationale to support the termination 

of appellant’s wage-loss compensation and medical benefits. Appellant testified that she continued 

to experience pain and weakness in her upper extremities and that she struggled with depression 

and anxiety.

Appellant subsequently submitted a February 6, 2018 report from Dr. Stephen Langer, a 

Board-certified psychiatrist, who opined that appellant continued to have residuals and disability 

causally related to her accepted employment-related single episode of major depression.

By decision dated May 23, 2018, OWCP’s hearing representative affirmed the October 2, 

2017 decision. She found that OWCP’s October 2, 2017 termination action was proper and further 

found that, after that proper termination action, appellant had not met her burden of proof to 

establish entitlement to wage-loss compensation or medical benefits on or after October 2, 2017.

LEGAL PRECEDENT -- ISSUE 1

Under FECA, once OWCP has accepted a claim it has the burden of justifying termination 

or modification of compensation benefits.12 OWCP may not terminate compensation without 

establishing that the disability ceased or that it was no longer related to the employment. 13 

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

evidence based on a proper factual and medical background.14

Section 8123(a) of FECA provides in pertinent part: “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.”

15

 In situations where 

there exist 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 

 

12 L.L., Docket No. 18-1426 (issued April5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 

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

13 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).

14 See R.P., Docket No. 17-1133 (issued January 18, 2018).

15 5 U.S.C. § 8123(a).
6

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

given special weight.16

ANALYSIS -- ISSUE 1

The Board first finds that OWCP has met its burden of proof to terminate appellant’s 

medical benefits, effective October 2, 2017, with respect to her accepted bilateral cubital tunnel 

syndrome and bilateral de Quervain’s tenosynovitis, but has not met its burden of proof terminate 

her medical benefits, effective the same date, with respect to her accepted bilateral carpal tunnel 

syndrome and enthesopathy of the right wrist/carpus. 

In his May 22, 2017 report, Dr. Rudd, an OWCP referral physician, provided an opinion 

that the accepted condition of bilateral cubital syndrome had resolved. He supported this opinion 

by explaining that October 5, 2016 EMG/NCV testing confirmed that appellant did not have such 

a condition and that his examination did not reveal objective signs of its existence. Dr. Rudd also 

explained that appellant no longer had bilateral de Quervain’s tenosynovitis because the medical 

evidence of record did not contain objective findings confirming the existence of this condition. 17 

Therefore, the Board finds that, with respect to continuing residuals of these conditions, the weight 

of the medical evidence is represented by the opinion of Dr. Rudd. Dr. Rudd provided a thorough 

factual and medical history, accurately summarized the relevant medical evidence, and provided 

medical rationale for his opinion that appellant had no continuing residuals of the accepted bilateral 

cubital tunnel syndrome and bilateral de Quervain’s tenosynovitis.

18

In addition, Dr. Rudd opined, without elaboration, that appellant’s accepted condition of 

bilateral carpal tunnel syndrome had resolved. The Board finds, however, that he did not provide 

a clear explanation for this conclusion. Dr. Rudd acknowledged that the October 5, 2016 

EMG/NCV testing contained an impression of bilateral carpal tunnel syndrome affecting sensory 

components, but he did not indicate when appellant’s carpal tunnel condition had resolved or 

otherwise explain how these diagnostic findings comported with his opinion that the condition had 

resolved.19 The Board further notes that Dr. Rudd did not provide an opinion regarding whether 

appellant continued to have residuals of the accepted enthesopathy of the right wrist/carpus and, 

therefore, OWCP has not presented a basis for its determination that appellant ceased to have 

residuals of this condition. For these reasons, the Board finds that OWCP has not met its burden 

of proof to terminate appellant’s medical benefits with respect to her accepted bilateral carpal 

 

16 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).

17 Dr. Rudd indicated that appellant’s Finkelstein’s sign testing yielded negative results and that she exhibited 

tenderness in multiple soft tissue zones of the wrists rather than only in the first dorsal compartments.

18 See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the 

importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical 

history, and the care of the analysis manifested and the medical rationale expressed in support of the physician’s 

opinion).

19 In the physical findings portion of his May22, 2017 report,Dr. Rudd indicated that bilateral Tinel’s sign testing 

produced exquisite pain without a physiologic paresthesia response which would suggest active carpal tunnel 

syndrome, but he also noted that bilateral Phalen’s sign testing was equivocal at best with respect to the presence of a 

carpal tunnel condition.
7

tunnel syndrome and enthesopathy of the right wrist/carpus, and she would be entitled to receive

continuing medical benefits related to these conditions.

The Board further finds that OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation, effective October 2, 2017, with respect to her accepted upper extremity 

injuries. In his May 22, 2017 report, Dr. Rudd provided a comprehensive description of the 

symptoms related to appellant’s upper extremities. He concluded that there were no objective 

medical findings in her upper extremities that would prevent her from returning to her regular work

as an assistant program manager. Dr. Rudd explained that appellant’s widespread upper extremity 

symptoms were subjective in nature and were related to the nonwork-related condition of 

fibromyalgia.20 In his May 22, 2017 report, he provided a thorough factual and medical history, 

accurately summarized the relevant medical evidence, and provided medical rationale for his 

opinion that appellant had no continuing disability causally related to her accepted upper extremity 

injuries.

21

On appeal counsel argues that Dr. Rudd did not provide adequate medical rationale to 

explain why appellant ceased to have residuals or disability on or after of October 2, 2017 due to 

her accepted upper extremity injuries. However, as detailed above, he provided a rationalized 

medical opinion supporting the termination of wage-loss compensation related to appellant’s

accepted upper extremity injuries and the termination of medical benefits related to her accepted 

bilateral cubital tunnel syndrome and bilateral de Quervain’s tenosynovitis.

On appeal counsel also argues that the provision of June 2013 video surveillance to

Dr. Rudd tainted his opinion on continuing employment-related residuals and disability. OWCP 

procedures provide that, once a surveillance video is provided to OWCP with a request that it be 

used in the management of the case, it becomes part of the official case record and a copy will be 

released to the claimant, if he or she requests it, just like any other portion of the case record. Its

procedures make reference to J.M.,

22 a case in which the Board held that, if the claimant requests 

a copy of surveillance video, one should be made available and the claimant given a reasonable 

opportunity to comment regarding the accuracy of the recording.23 The Board notes that, in the 

present case, appellant was provided an opportunity to view the June 2013 surveillance video and 

comment on it prior to the May 22, 2017 referral examination of Dr. Rudd. Counsel did, in fact, 

request a copy of the June 2013 surveillance video on behalf of appellant and, in January 2014, 

counsel received a copy for inspection.

 

20 The Board notes that OWCP has not accepted appellant’s claim for fibromyalgia or a chronic pain condition, and 

the case record does not contain a rationalized medical opinion establishing the existence of such an employmentrelated condition. Although Dr.Rudd indicated that “work will be problematic” with appellant’s widespread pain 

complaints related to fibromyalgia, he emphasized that these complaints were entirely subjective in nature.

21 See Melvina Jackson, supra note 18. In addition, in a June 8, 2017 Form OWCP-5c, Dr. Rudd provided an 

opinion that appellant could perform her usual job without restrictions.

22 58 ECAB 478 (2007).

23 See Federal (FECA) Procedure Manual, Part 2 --Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.9g (September 2010). See also R.B., Docket No. 15-0420 (issued August10, 2015) (citing the principle that, 

upon request, a claimant should be provided a reasonable opportunity to respond to the accuracy of video surveillance

materials provided to a physician).
8

The Board further finds that OWCP has not met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective October 2, 2017, with respect to her 

accepted single episode of major depression.

In his August 23, 2016 report, Dr. Hunt discussed appellant’s history of emotional 

problems and reported the findings of his psychological evaluation. Under the Axis I category, he 

diagnosed a single episode of major depressive disorder (moderate-to-severe, administrative ly 

accepted), which had resolved with regard to the industrial injury; adjustment disorder with 

depressed and anxious mood, unrelated, primarily related to occupational factors; pain disorder, 

associated with psychological factors, unrelated; and rule out factitious disorder versus 

malingering. Under the Axis II category, Dr. Rudd noted that he was deferring a diagnosis and 

recommended that appellant undergo MMPI or Millon testing to address her underlying 

psychological dysfunction. He indicated, “Clarification would be related, because it would help 

clarify Axis I diagnoses.”

24

In September 2016 OWCP determined that additional development of the medical 

evidence was necessary with respect to appellant’s emotional condition. It requested that Dr. Hunt 

proceed with the psychological testing he recommended in his August 23, 2016 report. OWCP 

further requested that, after completion of the testing, he revisit his responses to the questions it 

posed when it initially referred the case to him in July 2016. 

However, Dr. Hunt did not provide a supplemental report per OWCP’s development letter 

and there is no evidence in the case record that he conducted additional psychological testing. The 

Board finds that the further development of the medical evidence commenced by OWCP was

necessary to clarify Dr. Hunt’s August 23, 2016 report, particularly given his own indication that 

clarification was needed regarding appellant’s Axis I diagnoses. The Board has previously 

indicated that OWCP shares responsibility in the development of the evidence.25 Accordingly, 

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

in the proper manner.26 Given the lack of completion of the above-described necessary 

development, the Board finds that OWCP has not met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective October 2, 2017, with respect to her 

accepted single episode of major depression.

27

 

24 In his August23, 2016 report, Dr. Hunt determined that appellant could return to her regular work from a 

psychiatric standpoint and advised that any depression or psychiatric dysfunction she was experiencing was not due 

to the accepted industrial injury. In a September 8, 2016 Form OWCP-5c, Dr. Hunt checked a box marked “Yes”

indicating that appellant could perform her usual job, and he added the notation, “Psychiatrically, related to the injury, 

yes.”

25 See D.V., Docket No. 17-1590 (issued December 12, 2018); Russell F. Polhemus, 32ECAB 1066 (1981).

26 See A.K., Docket No. 18-0462 (issued June19, 2018); Robert F. Hart, 36 ECAB 186 (1984).

27 After OWCP’s October 2, 2017 determination, appellant submitted a medical report relating to her emotional 

condition and, by decision dated May23, 2018, OWCP found that she did not meet her burden of proof to receive 

wage-loss compensation or medical benefits on or after October 2, 2017. Given the Board’s reversal of OWCP’s 

termination action with respect to the accepted single episode of major depression, the second issue of the case is 

moot.
9

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s medical 

benefits, effective October 2, 2017, with respect to her accepted bilateral cubital tunnel syndrome 

and bilateral de Quervain’s tenosynovitis, but not with respect to her accepted bilateral carpal 

tunnel syndrome and enthesopathy of the right wrist/carpus. The Board further finds that OWCP 

has met its burden of proof to terminate appellant’s wage-loss compensation, effective the same 

date, with respect to her accepted upper extremity injuries, but has not met its burden of proof to 

terminate her wage-loss compensation and medical benefits with respect to her accepted single 

episode of major depression.

ORDER

IT IS HEREBY ORDERED THAT the May 23, 2018 decision of the Office of Workers’

Compensation Programs is affirmed in part and reversed in part.

Issued: October 22, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board