United States Department of Labor

Employees’ Compensation Appeals Board

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D.V., Appellant

and

U.S. POSTAL SERVICE, GENERAL MAIL 

FACILITY, Fort Worth, TX, Employer

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Docket No. 20-1548

Issued: June 3, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 21, 2020 appellant filed a timely appeal from a March 2, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(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 properly terminated appellant’s wage-loss 

compensation and medical benefits effective July 3, 2019 as he no longer had residuals or 

disability causally related to his accepted employment injury; and (2) whether appellant has met 

his burden of proof to establish continuing employment-related disability or residuals on or after 

July 3, 2019 due to his accepted employment injury.

FACTUAL HISTORY

On October 14, 1999 appellant, then a 32-year-old mail clerk, filed an occupational disease 

claim (Form CA-2) alleging that he sustained ulnar neuritis causally related to factors of his federal 

employment including keying, pulling and casing mail. OWCP accepted the claim for bilateral 

 

1 5 U.S.C. § 8101 et seq.
2

carpal tunnel syndrome, bilateral cubital tunnel syndrome, and bilateral cervical radiculitis. It paid 

appellant wage-loss compensation for time lost from employment.2 

By decision dated November 29, 2005, OWCP adjusted appellant’s wage-loss 

compensation effective December 25, 2005 based on its finding that he had the capacity to earn 

wages in the constructed position of a tractor-trailer truck driver.

On December 4, 2013 OWCP referred appellant to Dr. James E. Butler, a Board-certified 

orthopedic surgeon, for a second opinion examination.

In a report dated April 3, 2014, Dr. Butler recounted appellant’s history of injury and 

appellant’s current complaints of pain, numbness, tingling, and weakness in his hands. On 

examination he found normal sensation, a negative Tinel’s sign of the elbows bilaterally, and a 

negative Phalen’s test and Tinel’s sign of the wrists bilaterally. Dr. Butler measured normal grip 

strength and nerve sensation. He found that appellant had no active diagnosed conditions and that 

his bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and cervical radiculitis had 

resolved. Dr. Butler noted that he had no neck complaints and no objective findings supporting 

an upper extremity condition. He advised that appellant’s examination “was entirely normal with 

no evidence of residuals findings.” Dr. Butler determined that he required no further treatment. 

In a work capacity evaluation (Form OWCP-5c) of even date, he found that appellant could 

perform his usual employment without restriction.

On April 25, 2019 OWCP notified appellant of its proposed termination of his wage-loss 

compensation and medical benefits as the weight of the evidence established that he had no 

employment-related residuals or disability due to his accepted employment injury. It afforded him 

30 days to submit additional evidence or argument if he disagreed with the proposed termination. 

OWCP noted that appellant had not sought treatment for his employment injury since 

October 2, 2008.

By decision dated July 3, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective July 3, 2019.3 It found that Dr. Butler’s April 3, 2014 opinion 

represented the weight of the evidence and established that he had no further disability or residuals 

of his accepted employment injury. 

On November 8, 2019 Dr. William Lian, a physiatrist, performed an electromyogram 

(EMG) and nerve conduction velocity (NCV) study. He discussed appellant’s complaints of 

chronic paresthesia in the right upper extremity after a 1999 ulnar release with intermittent hand 

swelling. Dr. Lian noted that he currently worked as a truck driver. On examination he found a 

loss of sensation in the fourth and fifth digits of the right hand and a positive Tinel’s sign at the 

right wrist and bilateral elbows. Dr. Lian indicated that electrodiagnostic testing had yielded 

essentially normal findings, but had shown a “potential demyelinating, right medial sensory 

 

2 By decision dated June 11, 2002, OWCP reduced appellant’s compensation to zero as his actual earnings as a 

modified letter carrier effective November 4, 2000 fairly and reasonably represented his wage-earning capacity. On 

March 3, 2004 it accepted that he had sustained a recurrence of disability.

3 OWCP indicated that it was terminating appellant’s benefits effective July 3, 2010; however, it appears that this 

was a typographical error. It further identified the accepted conditions using the codes from the International 

Classification of Diseases (ICD)-9 rather than the ICD-10. 
3

neuropathy consistent with mild carpal tunnel syndrome.” He found chronic right ulnar nerve 

irritation at the elbow based on appellant’s history and examination. In an addendum dated 

November 22, 2019, Dr. Richard C. Robinson, a physiatrist, cosigned the report and concurred 

with Dr. Lian’s findings.

On December 3, 2019 appellant requested reconsideration. He advised that he had to wear 

elbow pads to alleviate pressure on the nerve in his elbow. 

By decision dated March 2, 2020, OWCP denied modification of its July 3, 2019 decision.

LEGAL PRECEDENT -- ISSUE 1

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

modification or termination of an employee’s benefits.4 After it has determined that an employee 

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

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

the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.6

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

entitlement for disability.7 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.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly terminated appellant’s wage-loss compensation 

and medical benefits effective July 3, 2019.

In an April 3, 2014 report, Dr. Butler, an OWCP referral physician, found that appellant 

had normal grip strength and sensation, a negative Phalen’s test, and a negative Tinel’s sign of the 

elbows and wrists bilaterally. He opined that the accepted conditions of bilateral carpal tunnel 

syndrome, bilateral cubital tunnel syndrome, and cervical radiculitis had resolved, noting that an 

examination had revealed no objective findings of the conditions. Dr. Butler asserted that 

appellant required no further medical treatment and could return to his usual employment without 

restrictions. 

On July 3, 2019 OWCP terminated appellant’s wage-loss compensation and medical 

benefits based on Dr. Butler’s April 3, 2014 report. 

 

4 R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

5 A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

6 C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

7 T.C., Docket No. 19-1383 (issued March 27, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).

8 R.P., Docket No. 18-0900 (issued February 5, 2019); Pamela K. Guesford, 53 ECAB 727 (2002).
4

The Board finds however, that Dr. Butler’s report was not reasonably contemporaneous to 

the termination of appellant’s wage-loss compensation and medical benefits to constitute the 

weight of the evidence. Dr. Butler’s report was rendered more than five years prior to OWCP’s 

decision terminating compensation and medical benefits. The Board has held that stale medical 

evidence cannot form the basis for a current evaluation of residuals symptomology, disability 

determination, or other medical determinations.9 Therefore, as Dr. Butler’s report was not 

reasonably contemporaneous, OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits.10

CONCLUSION

The Board finds that OWCP improperly terminated appellant’s wage-loss compensation 

and medical benefits effective July 3, 2019.

ORDER

IT IS HEREBY ORDERED THAT the March 2, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: June 3, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

9 See J.O., Docket No. 20-0519 (issued November 30, 2020); B.J., Docket No. 18-1186 (issued July 9, 2019); G.M., 

Docket No. 14-2057 (issued May 12, 2015). See also Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 

ECAB 1878 (1981) (finding that reports around two years old were invalid for determining disability and loss of wageearning capacity). 

10 In light of the Board’s disposition of Issue 1, Issue 2 is moot.