United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Pittsburgh, PA, 

Employer

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Docket No. 19-1091

Issued: December 3, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 April 18, 2019 appellant, through counsel, filed a timely appeal from a March 19, 2019 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 The Board notes that appellant subsequently filed an appeal from a May 3, 2019 schedule award decision. That 

appeal is not presently before the Board.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

ISSUE

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

compensation and medical benefits, effective September 6, 2018, as he no longer had residuals or 

disability causally related to his accepted right upper extremity condition.

FACTUAL HISTORY

On December 14, 2015 appellant, then a 32-year-old casual mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that he injured his right index finger that same day while in the 

performance of duty. He was assembling a two-shelf all-purpose container (APC) when one of 

the shelves dislodged and slammed down on his finger. On the reverse side of the claim form, the 

employing establishment indicated that appellant stopped work on December 14, 2015. 

On February 18, 2016 OWCP accepted appellant’s claim for traumatic rupture of the right 

ulnar collateral ligament. Effective January 9, 2016, it paid him wage-loss compensation for 

temporary total disability on the supplemental rolls.

In a report dated March 1, 2016, Dr. Bradley Palmer, a Board-certified orthopedic surgeon

followed up with appellant for his right index finger crush condition. He noted that appellant 

continued to have significant hypersensitivity to palpation of the middle and left index finger. 

Dr. Palmer noted that appellant had clinical symptoms that did not correlate with his areas of pain 

and had pain out of proportion to the injury that he sustained. He diagnosed traumatic rupture of 

the right ulnar collateral ligament.

In a report dated June 9, 2016, Dr. Till Conermann, Board-certified in anesthesiology and 

pain medicine, initially examined appellant for chronic right hand pain status post-traumatic 

rupture of the right ulnar collateral ligament in a work-related crush injury in 2015. On 

examination of the right upper extremity, he observed burning pain in the index and middle fingers 

and difficulty eliciting a motor examination at the index and middle finger joints due to pain. 

Dr. Conermann diagnosed chronic right hand pain with a possible component of sympatheticallymediated and complex regional pain syndrome, traumatic rupture of the right ulnar collateral 

ligament, and mild right cubital tunnel syndrome.

In a work capabilities report dated June 21, 2016, Dr. Palmer recommended sedentary 

work restrictions of no lifting over five pounds and no repetitive use of the right hand.

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that following the March 19, 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.
3

On August 22, 2016 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), the medical record, and a list of questions, to Dr. Victoria A. Langa, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine whether he continued to have 

residuals and disability due to the accepted employment injury. In a September 8, 2016 report,

Dr. Langa reviewed the medical record and examined appellant, noting tenderness over the ulnar 

borders of the PIP joints of the index and middle digits. He could not fully flex his index and 

middle digits into his palm to form a fist. Dr. Langa observed that appellant’s ligaments were 

entirely stable to stress testing. She diagnosed persistent discomfort of the right index/middle 

digits with questionable etiology, possible type 2 complex regional pain syndrome, and possible 

type 1 atypical complex regional pain syndrome. Dr. Langa noted that he had an unusual degree 

of ongoing discomfort involving his index and middle digits, with none of the typical findings for 

type 1 complex regional pain syndrome. She further noted that appellant was scheduled to undergo 

a stellate ganglion block the next week, which would help to confirm a diagnosis of type 1 regional 

pain syndrome if it significantly relieved his symptoms. Dr. Langa opined that his ongoing 

complaints were ultimately related to the incident of December 14, 2015 and that he continued to 

suffer residuals of the work-related injury. She recommended light-duty work restrictions of no 

pushing, pulling, or lifting over 25 pounds.

On February 2, 2017 appellant underwent an OWCP-approved right stellate ganglion block 

at the C6 level with local anesthetic.

In a report dated February 16, 2017, Dr. Conermann noted that the right stellate ganglion 

block had helped appellant’s pain for one day, after which the pain returned fully to baseline with 

no significant or lasting improvement. He diagnosed chronic right hand pain and suspected type 

1 complex regional pain syndrome. 

In a progress note dated February 28, 2017, Dr. Peter Tang, a Board-certified orthopedic 

hand surgeon, examined appellant’s right upper extremity. He observed no tenderness to palpation 

of his fingers or palm, no swelling, no obvious deformities, and well-perfused fingers. Appellant 

reported pain of 10 on a scale of 10. Dr. Tang reported that he looked comfortable and suspected 

that appellant may be malingering. He diagnosed a right hand crush injury about a year prior and 

noted that this may be a secondary gain issue. Dr. Tang recommended a functional capacity 

evaluation (FCE) and independent medical evaluation. 

An FCE was performed on April 6, 2017. Appellant demonstrated deficits including 

decreased right hand motion, decreased right upper extremity strength, decreased repetitive 

grasping, hypersensitivity to touch and movement on the right hand palmar surface, decreased 

dexterity of the right upper extremity, and self-limiting pain. The evaluator noted that appellant 

demonstrated overall inconsistent performance with testing and decreased effort with the right 

hand. He indicated that muscle recruitment patterns were inconsistent with pain levels reported 

when aware and unaware of observation.

On May 15, 2017 Dr. Conermann responded to the FCE and opined that appellant had not 

reached maximum medical improvement (MMI) and that he would likely benefit from a trial of 

spinal cord stimulation.
4

On May 9, 2017 Dr. Palmer responded to the FCE, noting that he agreed with the results 

and that appellant was at MMI, but may not be at MMI from a pain management standpoint.

On June 16, 2017 OWCP referred appellant to Dr. Michael J. Rytel, a Board-certified 

orthopedic surgeon.

5

In a report dated July 13, 2017, Dr. Rytel examined appellant’s right upper 

extremity and observed tenderness over the second and third digits from the tips of his fingers to 

the palm, exclusively on the palmar side of the fingers and hand. Appellant’s active range of 

motion of the second and third fingers was diminished about 50 percent due to pain, with 20

percent of passive flexion diminished due to pain. The right upper extremity was otherwise 

normal. Dr. Rytel noted that while the accepted condition under this claim was a traumatic rupture 

of the right hand index finger ulnar collateral ligament, appellant had not ruptured the ligament 

nor any tendons as indicated on the initial examination, as that diagnosis was based on tenderness 

to palpation and reported pain to stress of the ulnar collateral ligament. He noted that nonetheless, 

traumatic rupture of the right hand index finger ulnar collateral ligament was the only diagnosis 

falling within the statement of accepted facts. In answering the questions posed by OWCP,

Dr. Rytel found that there were no objective residuals of appellant’s accepted condition and no 

objective findings supporting a diagnosis of type 1 complex regional pain syndrome. He indicated 

that appellant’s position at the employing establishment was a supervisory information 

technology (IT) specialist. Dr. Rytel noted that as appellant’s physical limitations were related 

limited to subjective complaints, he was capable of performing the position he had held at the time 

of injury. He listed current diagnoses related to the work injury as finger contusion, ulnar collateral 

ligament sprain, and chronic pain.

On September 21, 2017 OWCP provided appellant with a notice of proposed termination 

of his wage-loss compensation and medical benefits because the medical evidence of record 

established that he no longer had residuals or continuing disability from work. It determined that 

the weight of the medical evidence rested with the July 13, 2017 report of Dr. Rytel. OWCP 

afforded appellant 30 days to submit additional evidence or argument.

In a letter dated September 21, 2017, appellant, through counsel, requested expansion of 

his claim to include additional conditions of type 1 complex regional pain syndrome of the right 

upper extremity and limb, right hand pain, and chronic pain due to trauma. Attached to the letter 

was a report from Dr. Michael Franzen, a psychologist, dated July 5, 2017. Dr. Franzen noted that 

appellant was a candidate for a spinal cord stimulator study and noted that review of the medical 

records indicated diagnoses of type 1 complex regional pain syndrome of the right upper extremity 

and limb, right hand pain, and chronic pain due to trauma.

In a report dated September 25, 2017, Dr. Conermann noted that appellant had been cleared 

for a trial of spinal cord stimulation by a pain psychologist. He reported that appellant had 

experienced pain in his right hand for approximately two years, with the onset after a shelf fell on 

his hand in 2015 while working at the employing establishment. On examination, Dr. Conermann 

noted that appellant exhibited ongoing guarding of his right hand, but allowed examination. He 

also exhibited grimacing and flinching with cold can testing in his right palmar surface. 

Dr. Conermann observed diminished grip strength in his right hand and decreased range of motion 

 

5 The Board notes that OWCP has inconsistently characterized Dr. Rytel as both a referee physician and a second 

opinion examiner. The record reflects that he was a second opinion physician. 
5

with his index finger. He noted that appellant was unable to fully close his right index finger, but 

with encouragement was able to exhibit some weakened grip strength in the right hand involving 

the middle and index fingers. Dr. Conermann observed that range of motion maneuvers testing 

was limited due to reported discomfort and reluctance due to the apparent discomfort. He

diagnosed chronic post-traumatic right hand pain and neuropathic pain involving the right hand 

with appellant’s symptoms not meeting the criteria for type 1 complex regional pain syndrome.

Dr. Conermann reported that appellant continued to have neuropathic pain in his fingers and was 

willing to undergo additional treatments.

In a letter dated September 18, 2017, Dr. Palmer opined that appellant should be on lightduty work secondary to the FCE findings, and that his work restrictions would be in place 

indefinitely. 

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

compensation and medical benefits effective that date. It found that the weight of the medical 

evidence rested with Dr. Rytel, who reported that appellant no longer had residuals or disability 

stemming from the accepted employment injury. OWCP stated that Dr. Rytel’s reference to 

appellant as a supervisory IT specialist was inadvertent and did not diminish the probative value 

of his report. 

On November 8, 2017 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative regarding the November 2, 2017 termination decision. The 

hearing was held on April 9, 2018.

By decision dated June 5, 2018, the hearing representative vacated the November 2, 2017 

decision and remanded the case file to obtain a supplementary report from Dr. Rytel, noting that 

appellant was performing the duties of a mail handler at the time of injury rather than supervisory 

IT specialist. He further directed that OWCP should inquire as to whether appellant was able to 

return to such duties effective November 2, 2017 and whether appellant had developed a chronic 

pain condition causally related to the incident of December 14, 2015.

On July 10, 2018 OWCP requested additional information from Dr. Rytel. In an addendum 

report dated August 22, 2018, Dr. Rytel reviewed appellant’s job description as a mail handler, a 

SOAF, and the case record. He opined that appellant would have been able to return to his 

preinjury job as a mail handler on November 2, 2017, noting that based on the lack of objective 

medical symptoms and diagnostic findings, he likely would have been able to return to work in a 

full-duty capacity much sooner than November 2, 2017. Dr. Rytel observed that appellant’s 

chronic pain condition was subjective in nature and did not present objective symptoms, and that 

as such, it could not be attributed to the incident of December 14, 2015. 

By decision dated September 6, 2018, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective that date. It found that the weight of the medical 

evidence rested with Dr. Rytel’s July 30, 2017 and August 22, 2018 reports, which opined that 

appellant no longer had residuals or disability stemming from the accepted employment injury.

On September 14, 2018 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative regarding the September 6, 2018 termination decision. 
6

Appellant subsequently submitted physical therapy notes and referral notes dated from 

March 8 through November 29, 2016.

The hearing was held on February 1, 2019. During the hearing, appellant stated that he 

was not working and that the last time he worked was at the employing establishment. He 

explained that he still had symptoms of the right hand including tingling and inability to lift heavy 

objects. The record was held open for at least 30 days for the submission of additional evidence. 

No further evidence was received.

By decision dated March 19, 2019, the hearing representative affirmed the September 6,

2018 decision. 

LEGAL PRECEDENT

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

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

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

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

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

entitlement to compensation for disability.7 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.8

OWCP’s procedures provide that notice is required prior to termination in all cases where 

benefits are being paid on the periodic rolls and in the case of termination of medical benefits.9 

Pretermination notice is not required when the claimant dies, returns to work, is convicted of 

defrauding FECA program, or forfeits compensation by failing to report earnings.10 The Board 

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

prior to the termination of compensation benefits.11

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 6, 2018.

 

6 Kenneth R. Burrow, 55 ECAB 157 (2003); see also T.D., Docket No. 15-1938 (issued July 11, 2016).

7 See T.P., 58 ECAB 524 (2007).

8 See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

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

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

10 Id. at 2.1400.4a.

11 K.S., Docket No. 11-2021 (issued August 21, 2012).
7

OWCP accepted appellant’s claim for traumatic rupture of the right ulnar collateral 

ligament. Appellant received wage-loss compensation and medical benefits.

On September 21, 2017 OWCP provided appellant with a notice of proposed termination 

of his wage-loss compensation and medical benefits because the medical evidence then of record 

established that he no longer had residuals or continuing disability from work. On November 2, 

2017 it terminated appellant’s wage-loss compensation and medical benefits effective on that date. 

However, by decision dated June 5, 2018, an OWCP hearing representative vacated the decision 

of November 2, 2017 and remanded the case file to obtain a supplementary report from Dr. Rytel, 

noting that appellant was performing the duties of a mail handler at the time of injury rather than 

supervisory IT specialist. A supplementary report from Dr. Rytel dated August 22, 2018 was 

obtained. Subsequently, by decision dated September 6, 2018, OWCP terminated appellant’s 

wage-loss compensation and medical benefits effective on that date, based in part on the 

August 22, 2018 supplementary report of Dr. Rytel.

Pursuant to OWCP’s procedures, before terminating appellant’s wage-loss compensation 

and medical benefits, the claims examiner was responsible for advising him of the proposed 

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

respond in writing.12 Pretermination notices are required in cases where all medical benefits are 

being terminated based on the medical opinion of a referee or second opinion physician.13 The 

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

respond prior to the termination of compensation benefits.14

In J.S., following the reversal of a prior termination and receipt of an impartial medical 

examiner’s report, OWCP again terminated appellant’s compensation benefits. However, as the 

claimant was receiving compensation on the periodic rolls at the time of the termination, the Board 

found that she should have received proper pretermination notification and therefore the case was 

reversed. 

Here, as in J.S. ̧ a hearing representative reversed the prior termination decision and OWCP 

subsequently issued a final termination decision without issuing another pretermination notice. 

Dr. Rytel’s opinion was the opinion of a second opinion examiner, and as such, OWCP was 

required to issue another pretermination notice before its final termination decision of 

September 6, 2018.

The Board finds that because the decision of September 6, 2018 terminated appellant’s 

medical benefits, he should have received proper pretermination notification. OWCP should have 

provided appellant with notice that it intended to terminate his compensation and an opportunity 

to submit evidence supporting a continuing employment-related disability.15

 

12 Supra note 8.

13 Id.

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

15 Id.; K.S., supra note 10.
8

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.16 The Board 

finds that the termination was improper and will be reversed.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 6, 2018.

ORDER

IT IS HEREBY ORDERED THAT the March 19, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: December 3, 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

 

16 D.R., Docket No. 14-1688 (issued April 8, 2015).