United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Concord, NC, Employer

__________________________________________

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Docket No. 18-1300

Issued: March 22, 2019

Appearances: Case Submitted on the Record

Erik B. Blowers, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2018 appellant, through counsel, filed a timely appeal from a May 8, 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 December 1, 2017; (2) whether appellant 

 

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

has met her burden of proof to establish continuing disability or residuals on or after December 1,

2017 causally related to her December 6, 2012 employment injury; and (3) 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.

FACTUAL HISTORY

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. She did not immediately stop 

work following the injury. On December 27, 2013 OWCP accepted the claim for right shoulder 

strain.

A July 14, 2013 magnetic resonance imaging (MRI) scan found mild degenerative 

acromioclavicular (AC) joint changes, but no impingement. Diagnoses included mild subdeltoid 

bursitis and mild AC joint degenerative changes.

On July 30, 2014 appellant underwent an OWCP-authorized right shoulder arthroscopic 

rotator cuff repair, performed by Dr. Bryan T. Edwards, a Board-certified orthopedic surgeon and 

sports medicine physician. By letter dated September 10, 2014, OWCP paid appellant

compensation on the periodic rolls for temporary total disability, with the first payment covering

the period July 31 to August 23, 2014.

On February 25, 2015 appellant underwent a second OWCP-authorized right shoulder 

arthroscopic rotator cuff repair, also performed by Dr. Edwards.

On May 18, 2015 OWCP referred appellant for a second opinion evaluation with

Dr. Harrison A. Latimer, a Board-certified orthopedic surgeon, for an opinion regarding the status 

of the accepted condition, appropriate treatment, and extent of disability. Dr. Latimer, in a 

June 17, 2015 report, performed a physical examination and reviewed the statement of accepted 

facts (SOAF) and medical records. Appellant’s physical examination revealed full right shoulder 

range of motion and no significant muscle weakness. Based on review of objective findings,

Dr. Latimer found that the accepted right shoulder “sprain” had resolved. He determined that 

appellant’s subjective complaints clearly outweighed the objective findings. Dr. Latimer

attributed her continued pain complaints to upper extremity neuritis and opined that she was unable 

to perform her date-of-injury job. He recommended that a functional capacity evaluation (FCE), 

nerve conduction velocity study, and electromyography be performed.

In a July 15, 2015 report, Dr. Edwards noted appellant’s medical history, which included 

two shoulder surgeries due to her rotator cuff injury. He reported that her first shoulder surgery 

involved decompression shoulder surgery due to repetitive overuse of her shoulder. As a result of 

rehabilitation following the surgery, appellant developed a tear, which resulted in rotator cuff tear 

repair surgery. Diagnoses included bilateral upper extremity weakness and cervical radiculopathy, 

which he attributed to her employment duties. Dr. Edwards further observed that these conditions 

were not preexisting, but were instead a direct result of her repetitive overuse at work. He 

concluded that appellant was currently limited by cervical conditions and that she had progressed 

as far as possible with respect to her rotator cuff condition. 
3

Dr. Edwards, in an October 14, 2015 report, noted that he had treated appellant for a 

December 6, 2012 right shoulder employment injury. He summarized her history of injury and 

medical treatment provided, including surgeries performed on July 30, 2014 and 

February 25, 2015. Dr. Edwards reported that appellant had complained of neck and arm pain, but 

the focus at the time had been more on her shoulder issues. As her shoulder condition improved, 

he noted that her underlying cervical condition became the focus of her issues. Dr. Edwards opined 

that appellant also sustained a neck injury due to the accepted December 6, 2012 employment

injury and that she was currently dealing with the ramifications of that injury. 

On June 17, 2016 OWCP received an addendum from Dr. Latimer clarifying his prior 

opinion. Dr. Latimer opined that appellant required no further treatment for her shoulder problem, 

but required treatment for carpal tunnel syndrome.

By decision dated March 14, 2017, OWCP denied expansion of the acceptance of 

appellant’s claim to include a cervical condition, finding that the evidence of record was 

insufficient to establish causal relationship between the cervical condition and the accepted 

December 6, 2012 employment injury. 

Dr. Edwards, in a July 17, 2017 report, related that since the 2012 employment injury 

appellant had neck, arm, and shoulder pain. Appellant’s physical examination revealed mildly 

painful shoulder forward flexion, full right shoulder internal and external rotation, right-side C5 

dermatome sensory loss, and 2+ triceps, biceps, and brachioradialis reflexes. She complained of 

headaches when putting her head into deep flexion and extension. Dr. Edwards diagnosed healed 

right shoulder rotator cuff repair, cervical neuralgia due to multilevel cervical fusion, right arm 

weakness, and headaches. He opined that appellant’s rotator cuff injury had resolved and that her 

current limitations were neurologically caused. 

In a July 27, 2017 report, Dr. Edwards summarized appellant’s medical history, noted her

pain complaints, and provided physical examination findings. Under assessment, he diagnosed 

cervical neuralgia due to multilevel cervical fusion and healed right shoulder cuff repair.

Dr. Edwards opined that appellant was capable of working with restrictions of no lifting more than 

five pounds with her right arm. 

In a letter dated August 24, 2017, OWCP referred appellant, a SOAF, and list of questions, 

for a second opinion evaluation with Dr. Joseph Estwanik, a Board-certified orthopedic surgeon,

to determine the status of appellant’s accepted condition and disability. The questions included: 

(1) whether the accepted condition of right shoulder sprain had resolved; (2) whether there are any 

residual conditions causally related to the December 6, 2012 employment injury; (3) whether the 

diagnosed conditions are medically connected to the accepted factors of employment; (4) whether 

appellant is able to return to her date-of-injury position as a sales and distribution associate; and 

(5) if she is not able to return to her date-of-injury job, is she able to work in a limited capacity. 

In a September 13, 2017 report, Dr. Estwanik noted appellant’s December 6, 2012

employment injury, reviewed the medical record, and provided detailed physical examination 

findings. He noted that appellant reported an unstable right shoulder in addition to cervical, left 

shoulder, right hand, and upper back pain complaints. Appellant also reported an inability to sleep 

on her side, wash her back, put her coat on, reach a high shelf, throw a ball, or lift 10 pounds above 
4

her shoulder. Dr. Estwanik also noted that the June 7, 2015 emergency room records indicated 

that appellant had been diagnosed with pneumothorax and rib fractures after a recent fall at home. 

He noted that the accepted employment-related condition was right shoulder strain. Physical 

examination findings included no audible or palpable right shoulder crepitance with active 

movement, full bilateral internal and external passive rotation, negative forward flexion, and 

negative abduction impingement testing. Dr. Estwanik opined that the accepted condition of right 

shoulder sprain had resolved. He pointed out that a January 14, 2013 MRI scan confirmed no 

rotator cuff abnormality or relationship to the December 6, 2012 employment injury. The only 

diagnosis made on the MRI scan was mild bursitis and preexisting mild AC joint inflammation. 

Furthermore, the operative note 19 months after the employment injury confirmed an intact rotator 

cuff with no tear observed. The first evidence of a small right rotator cuff tear was two years after 

the date of injury, which Dr. Estwanik opined was “remote to her mechanism of injury and is 

remote to the objective first MRI scan that demonstrated an intact rotator cuff.”

In response to a specific question as to whether appellant had residual conditions causally 

related to the December 6, 2012 employment injury, he responded that she had an excellent 

recovery and no residual conditions due to the December 6, 2012 employment injury. 

Dr. Estwanik also explained that her current cervical complaints were unrelated to the accepted 

right shoulder sprain. He opined that appellant was able to return to her regular job as it related to 

the resolved accepted employment injury. Dr. Estwanik concluded that she required treatment for 

her preexisting depression, which was unrelated to her accepted employment injury. He further 

opined that “the remote surgeries were not related to or attributable to the accepted facts of 

shoulder strain by the anatomic findings produced on [the] initial MRI [scan] and the initial 

arthroscopic procedure.”

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

compensation and medical benefits based on Dr. Estwanik’s September 13, 2017 report. It 

informed her that Dr. Estwanik found that she no longer had residuals or disability causally related 

to the December 6, 2012 employment injury as her accepted condition of “sprain of shoulder and 

upper arm, other specified sites, right” had resolved. OWCP afforded appellant 30 days to respond 

if she disagreed with the proposed termination. 

On October 20, 2017 counsel requested that the acceptance of appellant’s claim be 

expanded to include the additional condition of rotator cuff tear, for which OWCP had previously 

authorized surgery. 

In a letter dated October 26, 2017, counsel disagreed with the proposal to terminate 

appellant’s wage-loss compensation and medical benefits. He asserted that she had developed a 

consequential rotator cuff injury as the result of the first authorized arthroscopic surgery. Counsel 

further asserted that, prior to terminating appellant’s compensation, OWCP should develop the 

issue of whether she developed depression as a consequence of her accepted December 6, 2012 

employment injury.

Counsel submitted an October 25, 2015 report by Dr. Edwards attributing the right rotator 

cuff tear to the physical therapy appellant received following her July 30, 2014 right shoulder 

surgery.
5

By decision dated December 4, 2017, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective that same date, finding that the weight of the 

evidence rested with Dr. Estwanik who found that appellant no longer had residuals or disability 

causally related to the accepted employment injury. 

On December 11, 2017 counsel again wrote to OWCP and noted that it had not responded 

to his previous requests to expand acceptance of appellant’s claim to include the right rotator cuff 

tear for which she had undergone authorized surgery. He also requested that acceptance of 

appellant’s claim be expanded to include depression, as diagnosed by Dr. Estwanik. 

On March 6, 2018 appellant, through counsel, requested reconsideration. Counsel asserted 

that OWCP’s decision to terminate wage-loss compensation and medical benefits was premature 

as it had failed to consider the request to expand acceptance of her claim to include additional 

consequential conditions. He noted that he had requested that OWCP expand her claim several 

times as well as having submitted additional evidence supporting the expansion of her claim. In 

support of the reconsideration request, counsel submitted letters that he had written concerning the 

request to expand appellant’s claim.

By decision dated May 8, 2018, OWCP noted that counsel had, on several occasions, 

requested that the acceptance of appellant’s claim be expanded to include the condition of rotator 

cuff tear, for which surgery had been authorized. However, it denied modification of the 

December 4, 2017 termination decision, finding that the letters counsel submitted were irrelevant 

as the underlying issue was medical in nature.

LEGAL PRECEDENT -- ISSUE 1

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

modification or termination of an employee’s benefits.3 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 has ceased or that it is no longer related to the employment.4 

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

evidence based on a proper factual and medical background.5

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

entitlement for disability.6 To terminate authorization for medical treatment, OWCP must 

 

3 R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4 D.M., Docket No. 17-1992 (issued September 12, 2018); I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 

734 (2003).

5 R.P., supra note 3; J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6 D.M., supra note 4; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).
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establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.7

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 December 1, 2017.

On August 24, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. Estwanik to determine whether she had ongoing residuals or disability and the status of her 

accepted condition. It noted that it provided Dr. Estwanik with a SOAF, the medical record, and 

a list of questions. In a report dated September 13, 2017, Dr. Estwanik opined that appellant’s 

right shoulder sprain had resolved.

The Board notes that the list of questions sent to Dr. Estwanik directed him to refer to an 

attached SOAF. However, the list of questions found in the record does not contain such an 

attachment. It is OWCP’s responsibility to provide a complete and proper frame of reference for 

a physician by preparing a SOAF.8 OWCP’s procedures dictate that when an OWCP medical 

adviser, second opinion specialist, or referee physician renders a medical opinion based on a SOAF

which is incomplete or inaccurate or does not use the SOAF as the framework in forming his or 

her opinion, the probative value of the opinion is seriously diminished or negated altogether.9 As 

it remains unclear whether Dr. Estwanik based his opinion on an accurate SOAF, the Board finds

that the probative value of Dr. Estwanik’s opinion is diminished and insufficient to be afforded the 

weight of the medical evidence.10

The Board therefore finds that OWCP failed to meet its burden of proof in terminating 

appellant’s wage-loss compensation and medical benefits, effective December 1, 2017, based on

Dr. Estwanik’s second opinion report.11

ANALYSIS -- ISSUE 3

The Board finds that the case is not in posture for decision.

The Board notes that when OWCP referred appellant for a second opinion evaluation with

Dr. Estwanik, it provided a list of questions which included whether appellant’s diagnosed 

conditions are medically connected to the accepted factors of employment. Dr. Estwanik opined 

in his September 13, 2017 report that appellant’s rotator cuff tear was not work related. He 

explained that a January 14, 2013 MRI scan confirmed no rotator cuff abnormality or relationship 

 

7 R.P., supra note 3; Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

8 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, supra note 6.

9 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990); see L.J., Docket No. 14-1682 (issued December 11, 2015).

10 See L.J., Docket No. 16-1852 (March 22, 2018).

11 In light of the Board’s disposition in Issue 1, Issue 2 is rendered moot.
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to the December 6, 2012 employment injury. Dr. Estwanik noted that the first evidence of a small 

right rotator cuff tear was two years after the date of injury, which was “remote to her mechanism 

of injury and is remote to the objective first MRI [scan] that demonstrated an intact rotator cuff.” 

However, he failed to explain with sufficient rationale why the rotator cuff tear was not 

employment related.12

The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is 

not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to 

compensation. However, OWCP shares responsibility in the development of the evidence to see 

that justice is done. Once it undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.13 Accordingly, the 

Board finds that the case must be remanded to OWCP.14 On remand OWCP should prepare an 

updated SOAF and request that Dr. Estwanik submit a supplemental report regarding whether 

appellant’s claim should be expanded to include additional conditions. Following this and any 

further development deemed necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 1, 2017. The Board further finds that 

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

include appellant’s consequential right rotator cuff tear. 

 

12 Cf. Linda L. Mendenhall, 41 ECAB 532 (1990).

13 See A.P., Docket No. 17-0813 (issued January 3, 2018); Richard F. Williams, 55 ECAB 343, 346 (2004).

14 H.T., Docket No. 18-0979 (issued February 4, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the May 8, 2018 decision of the Office of Workers’

Compensation Programs is reversed in part and set aside in part. This case is remanded to OWCP 

for further development consistent with this decision, to be followed by a de novo decision. 

Issued: March 22, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board