United States Department of Labor

Employees’ Compensation Appeals Board

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M.E., Appellant

and

DEPARMENT OF THE ARMY, ARMY 

NATIONAL GUARD, Fort Dix, NJ, Employer

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Docket No. 20-0877

Issued: August 2, 2021 

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 12, 2020 appellant, through counsel, filed a timely appeal from a September 23, 

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.3

 

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.

3 Appellant submitted additional evidence to the Board on appeal. However, the Board’s Rules of Procedures

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.
2

ISSUE

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

compensation and medical benefits, effective April 30, 2019, as he no longer had residuals or 

disability causally related to his accepted May 14, 1999 employment injury.

FACTUAL HISTORY

On May 15, 1998 appellant, then a 29-year-old heavy mobile equipment repairer, filed a 

traumatic injury claim (Form CA-1) alleging that on May 14, 1998 he sustained an injury when he 

was breaking down tires while in the performance of duty. OWCP accepted his claim for chest 

contusion, cervical and thoracic sprains, tendinitis, bursitis, and internal derangement of the right 

shoulder. It authorized right shoulder acromioplasty surgery that was performed on 

October 12, 1998. Appellant stopped work on the date of injury and OWCP paid him 

compensation for disability from work. 

In September 26 and 28, 2017 reports, Dr. Mark Reiner, an attending osteopath 

Board-certified in orthopedic surgery, opined that employment-related chronic pain in appellant’s

right shoulder girdle/arm, as well as employment-related cervical problems, rendered appellant 

totally disabled from work. In a January 18, 2018 report, Dr. Andrew Newman, a Board-certified 

orthopedic surgeon, serving as an OWCP referral physician, determined that appellant’s May 14, 

1998 employment injury had resolved and opined that an employment-related condition did not 

prevent appellant from returning to modified-duty work.

OWCP determined that there was a conflict in the medical opinion evidence regarding 

employment-related residuals and disability and referred appellant and the case record to

Dr. Ian Blair Fries, a Board-certified orthopedic surgeon, for an impartial medical examination and 

opinion on the matter. In a report dated April 29, 2018, Dr. Fries discussed appellant’s factual and 

medical history and reported physical examination findings. He opined that appellant did not have 

the clear objective findings expected if he had a serious right upper extremity neurological disorder 

present for about two decades. Dr. Fries indicated that appellant did not have any measurable 

residuals of injuries sustained or accepted in a work-related May 14, 1998 employment injury. He 

did note a history of cerebrovascular accidents, but indicated that he had not been provided with 

sufficient documentation to assess this condition and determine if it was responsible for some or 

all of appellant’s right upper extremity complaints. Dr. Fries noted that appellant’s 1998 right 

shoulder surgery identified neither tendinitis nor bursitis and indicated that the only findings were 

a Type II acromion, a developmental condition, and impingement. He opined that there was no 

support for a firm diagnosis other than symptom magnification or malingering as some physicians 

had suggested. Dr. Fries opined that appellant’s accepted conditions had resolved and found that 

appellant was able to return to regular duty, noting that he should have returned to full duty in 

early 1999. 

In an August 17, 2018 letter, OWCP advised appellant that it proposed to terminate his 

wage-loss compensation and medical benefits as he no longer had residuals or disability causally 

related to his accepted May 14, 1998 employment injury. It indicated that the special weight of 

the medical opinion evidence with respect to this matter rested with the opinion of Dr. Fries, the 

impartial medical examiner. OWCP provided appellant 30 days to submit evidence or argument 
3

challenging the proposed termination action. In response, appellant argued that Dr. Fries’ opinion 

was insufficiently well rationalized to constitute the special weight of the medical evidence. 

In response to an October 23, 2018 request from OWCP for clarification of his opinion,

Dr. Fries provided an October 29, 2018 report in which he indicated that appellant had been 

diagnosed with right shoulder impingement prior to his 1998 surgery, but that he no longer had

that diagnosis. He opined that appellant’s right shoulder impingement was relieved by the 1998 

surgery. Dr. Fries indicated that, therefore, the only residual diagnosis that might be considered 

due to appellant’s May 14, 1998 employment injury was mild adhesive capsulitis of the right 

shoulder. He noted, “This diagnosis is compatible with return to work.” Dr. Fries indicated that 

he could not determine how much of appellant’s limited right shoulder motion was due to adhesive 

capsulitis and how much was voluntary limitation. He noted that no such limitation was 

documented at the time of the 1998 surgery and found that “[v]oluntary exaggeration is clearly a 

concern raised by others as well by me.” With respect to the fact that appellant had less grip 

strength on the right side, Dr. Fries asserted that appellant voluntarily influenced the result. He 

further cited the lack of appellant’s forearm atrophy, and found that “at most [appellant] has slight 

disability.”

By decision dated April 29, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective April 30, 2019, as he no longer had residuals or disability causally 

related to his accepted May 14, 1998 employment injury.

Appellant, through counsel, requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review. During the oral hearing held on August 21, 2019, counsel argued that

Dr. Fries’ opinion was insufficient to constitute the special weight of the medical evidence. By 

decision dated September 23, 2019, OWCP’s hearing representative affirmed the April 29, 2019 

decision. 

LEGAL PRECEDENT

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

termination or modification 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

 

4 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).

5 See 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).

6 M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).
4

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

entitlement for disability compensation.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

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.”

9

 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 

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

given special weight.10

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 30, 2019.

OWCP properly determined that there was a conflict in the medical opinion evidence 

regarding employment-related residuals/disability and referred appellant, pursuant to section 

8123(a) of FECA (5 U.S.C. § 8123(a)), to Dr. Fries for an impartial medical examination and an 

opinion on the matter. The Board finds, however, that Dr. Fries’ opinion on employment-related 

residuals/disability is not sufficiently rationalized to constitute the special weight of the medical 

opinion evidence.11

The Board finds that Dr. Fries’ opinion on employment-related residuals/disability, 

expressed in his April 29 and October 29, 2018 reports, is of limited probative value because he 

did not provide adequate medical rationale explaining why all of appellant’s accepted conditions 

had resolved, particularly with regard to the right shoulder. In fact, Dr. Fries suggested in his 

October 29, 2018 report that appellant continued to have an employment-related right shoulder 

condition. He indicated in that report that the only residual diagnosis that might be considered due 

to appellant’s employment injury was mild adhesive capsulitis of the right shoulder. In addition,

Dr. Fries opined in his April 29, 2018 report that appellant’s accepted conditions had resolved and 

found that appellant was able to return to regular duty, noting that he should have returned to full 

duty in early 1999. However, he did not adequately explain the medical process through which 

appellant’s accepted conditions would have resolved at that time. Moreover, Dr. Fries provided a 

contradictory opinion on his October 29, 2018 report when he noted that “[a]t most [appellant] has 

 

7 A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 

ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).

8 See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

9 5 U.S.C. § 8123(a).

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

1010 (1980).

11 See supra notes 8 and 9.
5

slight disability.” The Board has held that a report is of limited probative value regarding a given 

medical matter if it does not contain medical rationale explaining that matter.12 The Board, 

therefore, finds that Dr. Fries’ reports are insufficient to meet OWCP’s burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits. 

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 30, 2019.

ORDER

IT IS HEREBY ORDERED THAT the September 23, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 2, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

12 See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).