United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

U.S. POSTAL SERVICE, ATLANTA 

NETWORK DISTRIBUTION CENTER, 

Atlanta, GA, Employer

__________________________________________

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Docket No. 21-0851

Issued: June 8, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 18, 2021 appellant filed a timely appeal from a March 12, 2021merit decision and 

a May 4, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 

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 The Board notes that, during the pendency of this appeal, OWCP issued a n August 5, 2021, decision which denied 

modification of its March12, 2021 decision. The Board and OWCP may not simultaneously exercise jurisdiction 

over the same issue(s). Consequently, OWCP’s August 5, 2021 decision is set aside as null and void. 20 C.F.R. 

§§ 501.2(c)(3), 10.626; see J.W., Docket No. 19-1688, n.1 (issued March 18, 2020); J.A., Docket No. 19-0981, n.2 

(issued December 30, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

2

5 U.S.C. § 8101 et seq.

3 The Board notes that following the March 12, 2021 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.
2

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation and medical benefits, effective January 20, 2021, as she no longer had disability or 

residuals causally related to her accepted October 29, 2010 employment injury; (2) whether 

appellant has met her burden of proof to establish continuing employment-related disability or 

residuals on or after January 20, 2021 due to her accepted employment injury; and (3) whether 

OWCP properly denied appellant’s request for a review of the written record.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.4 The facts and 

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. The facts relevant to the present appeal are as follows.

On February 18, 2011 appellant, then a 59-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she sustained cubital tunnel syndrome causally related to 

factors of her federal employment including lifting trays of mail and pushing mail containers on 

the workroom floor.

5

 She noted that she first became aware of her condition and realized its 

relation to factors of her federal employment on October 29, 2010. OWCP accepted the claim for

bilateral cubital tunnel syndrome/bilateral ulnar nerve lesions. Appellant stopped work on 

December 1, 2010 and has not returned. OWCP paid her wage-loss compensation on the 

supplemental rolls as of December 11, 2010 and on the periodic rolls as of March 13, 2011.6 It

authorized bilateral cubital tunnel release surgeries, which were performed on March 14 and 

June 13, 2011. Appellant also underwent an authorized left cubital tunnel subcutaneous ulnar 

nerve transposition on August 18, 2014. 

Appellant came under the care of Dr. Jeffrey Kesten, a Board-certified physiatrist, on 

September 28, 2015. Dr. Kesten noted appellant’s history of injury and medical treatment. He 

provided physical examination findings and diagnosed bilateral upper extremity pain; right hand 

paresthesias; history of right carpal tunnel syndrome; history of bilateral cubital tunnel syndrome; 

history of 1st, 2nd, 3rd, 4th, and 5th trigger finger; status post right carpal tunnel release; and status 

postleft and cubital tunnel subcutaneous ulnar nerve transposition. Dr. Kesten noted that appellant 

had been previously released to return to modified work with restrictions. 

Appellant continued to be followed by Dr. Kesten who submitted reports and follow-up 

evaluations covering October 12, 2015 through September 11, 2019, finding that appellant 

continued to have residuals of bilateral carpal tunnel syndrome and bilateral cubital tunnel 

4 Docket No. 17-1663 (issued March28, 2018). 

5 The record indicates that appellant had originally filed a claim for recurrence of disability (Form CA-2a) under 

OWCP File No. xxxxxx846, which was accepted for bilateral carpal tunnel syndrome. OWCP determined that the 

cubital tunnel syndrome claim was a new occupational disease, to be adjudicated separately under File No. xxxxxx845. 

It administratively combined the case records on May 21, 2018, with OWCP File No. xxxxxx846 serving as the master 

file. 

6 Appellant retired on disability effective June 25, 2012. 
3

syndrome. Dr. Kesten also continued to relate that appellant was capable of working a modified 

job with restrictions. 

On October 18, 2019 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), list of questions, and medical record, to Dr. Wallace K. Larson, a Board-certified 

orthopedic surgeon, for a second opinion regarding the status of appellant’s work-related 

conditions. 

In a report dated November 26, 2019,Dr. Larson noted an injury history, reviewed medical 

records and SOAF, and detailed physical examination findings. He reported inconsistent sensory 

testing, no anesthesia in any of her digits, very weak bilateral interosseous function, greater on the 

right side, no definitive atrophy, tenderness on palpation of the medial nerve greater on the right 

elbow than the left elbow, no thenar atrophy, and full bilateral wrist and elbow range of motion. 

Dr. Larson opined that appellant continued to have residuals of the accepted cubital tunnel 

syndrome and mild carpal tunnel syndrome. He observed that her reported symptoms were out of 

proportion to any objective findings, andthe majority of her symptoms were related to somatoform 

pain disorder, rather than residual cubital tunnel syndrome. Dr. Larson reported that appellant 

demonstrated exaggerated withdrawal behaviors on palpation of either elbow medial aspect. In 

addition, there are significant inconsistencies on sensory testing. Dr. Larson opined that the cubital 

tunnel condition was unlikely to be work related although it was listed as an accepted condition on 

the SOAF. He found that the work restrictions from Dr. Kesten were not justified based on 

objective findings, and he found no additional treatment was necessary for appellant’s accepted 

work-related conditions. In an attached work capacity evaluation (Form OWCP-5c), Dr. Larson

provided permanent work restrictions, which limited her to up to 20 pounds pushing, pulling, and 

lifting for 8 hours per day.

Dr. Kesten, in follow-up medical evaluations dated December 13, 2019 and January 10, 

2020, summarized medical treatment and prescribed medication. On December 13, 2019 he 

reported positive bilateral Phalen’s signs and 2+ bilateral biceps, triceps, and brachioradialis 

muscle reflexes while on January 10, 2020 he reported 1+ bilateral brachioradialis, right biceps, 

and right triceps muscle stretch reflexes. Dr. Kesten diagnosed bilateral upper extremity pain, 

right-hand paresthesias, history of right carpal tunnel syndrome, bilateral cubital tunnel syndrome, 

history of right 1

st, 2nd, 3rd, 4th

, and 5th trigger finger, status post left cubital tunnel release on 

March 14, 2011, status post endoscopic right elbow endoscopic cubital tunnel release, status post 

revision subcutaneous ulnar nerve transposition, and status post right neuroplasty and transposition 

of the right ulnar nerve at the elbow for cubital tunnel syndrome and elbow flexor pronator muscles 

tendon lengthening. He concluded that appellant’s symptoms and findings resulted fromher workrelated injuries as documented and assessed at every evaluation/consultation.

In a supplemental report dated February 4, 2020, Dr. Larson opined that appellant did not 

require any additional treatment or medication for the accepted conditions. He reiterated that her 

reported symptoms were out of proportion to objective findings and that her restrictions were due 

to her deconditioned state. Dr. Larson found no objective data on which to provide specific 

physical limitations, but he also noted that appellant’s electrodiagnostic studies of February 17, 

2016 demonstrated severe right ulnar neuropathy, and left greater than right carpal tunnel 

syndrome. 

OWCP received February 10 and March 11, 2020 follow-up medical evaluation reports

from Dr. Kesten, which were repetitive of his prior reports. 
4

On March 4, 2020 OWCP determined that there was a conflict in the medical opinion 

evidence between Dr. Kesten

7 and Dr. Larson regarding whether appellant continued to have 

residuals or disability causally related to the accepted employment injury. In order to resolve the 

conflict, it referred appellant, pursuant to 5 U.S.C. § 8123(a), to Dr. Jeffrey J. Sabin, a Boardcertified orthopedic surgeon, for an impartial medical examination. OWCP provided Dr. Sabin 

with a copy of the case record, a current SOAF, and a series of questions.

Dr. Kesten, in follow-up medical evaluation reports dated April 10, May 11, July 10, and 

August 10, 2020, reiterated findings and diagnoses from prior reports. 

In an August 14, 2020 report, Dr. Sabin detailed appellant’s medical history and reported 

the findings of the physical examination he conducted that day. He noted that she primarily 

complained of sharp shooting pain from her hands to her shoulders with any type of activity or

movement. Dr. Sabin indicated that, upon examination, appellant demonstrated severe pain 

behavior throughout her entire upper extremity examination, which included checking reflexes, 

exhibiting pain with even any light touch of any arm part, and global weakness secondary to 3+/5 

pain of all upper extremity muscles. He indicated that her fibromyalgia trigger points were likely 

invalid based on her complaint of severe left posterior shoulder pain upon his touching her 

forehead with his finger. Dr. Sabin diagnosed somatization disorder and status post multiple failed 

nerve decompression surgeries in both arms. He opined that appellant’s symptoms were 

exaggerated and out of proportion to the accepted cubital tunnel syndrome. Dr. Sabin concluded 

that her numerous subjective complaints were attributable to her somatoform disorder, which was 

unrelated to the accepted employment injury and that her prognosis was poor. In an August 28, 

2020 Form OWCP-5c, he indicated that, with respect to the accepted cubital tunnel syndrome, 

appellant could perform her regular work on a full-time basis.

A follow-up medical evaluation report dated September 2, 2020 from Dr. Kesten was 

repetitive and unchanged from prior reports. 

On October 8, 2020 OWCP issued a notice of proposed termination advising appellant that 

it proposed to terminate her wage-loss compensation and medical benefits because she ceased to 

have residuals or disability due to her accepted employment injury. It informed her that the 

proposed termination was based on the opinion of Dr. Sabin, the impartial medical examiner 

(IME). OWCP afforded appellant 30 days to submit additional evidence or argument challenging 

the proposed action.

On November 5, 2020 appellant disagreed with the proposal to terminate her compensation 

benefits, asserting that she continued to have residuals and disability due to her accepted work 

injury.

In reports dated December 10, 2020 and January 7, 2021, Dr. Rasheed Singleton, a 

physician specializing in pain medicine, noted appellant’s history of injury and provided 

examination findings. He noted that she complained of bilateral hand, joint, and nerve pain. 

Dr. Singleton diagnosed right carpal tunnel syndrome, bilateral ulnar nerve lesion, and chronic 

pain syndrome. On January 7, 2021 Dr. Singleton reported: physical examination findings, which

7 OWCP noted the conflict as between Dr.Hanna Bisset and Dr.Larson rather thanDr.Kesten and Dr.Larson. It 

also referred to Dr.Bisset as a second opinion physician. The Board notes the record does not contain any reports 

from Dr.Bisset either as a treating physician or as an OWCP referral physician. 
5

included bilateral upper extremity, hand/wrist, forearms, and elbow abnormal sensation changes;

positive Tinel’s sign; and bilateral medial epicondyles tenderness. A review of a December 17, 

2020 electromyograph (EMG) demonstrated mild bilateral median neuropathy, moderate right 

chronic ulnar neuropathy, and normal left ulnar nerve. Dr. Singleton diagnosed right carpal tunnel 

syndrome, bilateral upper limb ulnar nerve lesion, and chronic pain syndrome. 

By decision dated January 20, 2021, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective January 20, 2021. It found Dr. Sabin’s opinion as 

the IME represented the special weight of the evidence and established that she had no further 

disability or residuals of her accepted employment injury. OWCP also noted that it had not 

received any additional medical evidence following the proposed termination of appellant’s 

compensation benefits.

On February 4, 2021 appellant requested reconsideration. 

In a February 4, 2021 report, Dr. Singleton noted appellant’s history of medical treatment

and provided examination findings. Physical examination findings were unchanged from his

January 7, 2021 report. Dr. Singleton again reviewed appellant’s December 17, 2020 EMG and 

diagnosed right upper limb carpal tunnelsyndrome, bilateral upper limb ulnar nerve lesion, chronic

pain syndrome, major depressive disorder, and long-term current opiate use.

By decision dated March 12, 2021, OWCP denied modification of its January 20, 2021 

decision. It found that Dr. Singleton failed to explain how the diagnosed conditions were causally 

related to the accepted employment injury. Thus, OWCP found the special weight of the medical 

opinion continued to rest with Dr. Sabin, the IME.

In an appeal request form dated and received on April 13, 2021, appellant requested a 

review of the written record before a representative of OWCP’s Branch of Hearings and Review. 

By decision dated May 4, 2021, OWCP denied appellant’s request for a review of the 

written record noting that she had previously requested reconsideration under 5 U.S.C. § 8128 and, 

therefore, she was not entitled to a review of the written record on the same issue as a matter of 

right. It also considered whether to grant a discretionary hearing and found that the issue could 

equally well be addressed by requesting reconsideration and submitting evidence not previously 

considered which established that she continued to have residuals and disability due to her 

accepted employment injury. 

LEGAL PRECEDENT -- ISSUE 1

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

termination or modification of an employee’s benefits.8 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 

8 C.M., Docket No. 20-1647 (issued October 5, 2021); D.G., Docket No. 19-1259 (issued January 29, 2020);

S.F., 59 ECAB 642 (2008);Kelly Y. Simpson, 57 ECAB 197 (2005);PaulL. Stewart, 54 ECAB 824 (2003).
6

the employment.9 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.10

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

entitlement for disability compensation.11 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.12

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 employe e, the 

Secretary shall appoint a third physician who shall make an examination.”

13

 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.14

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 January 20, 2021.

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

between Dr. Kesten, an attending physician, and Dr. Larson, an OWCP referral physician, as to 

whether appellant continued to have residuals or disability causally related to the accepted 

employment injury. 

In his initial report dated November 26, 2019, Dr. Larson opined that appellant continued 

to have residuals of the accepted cubital tunnel syndrome. He also observed that her reported 

symptoms were out of proportion to any objective findings and were related to somatoform pain 

disorder, rather than residual cubital tunnel syndrome. Dr. Larson found no objective data on 

which to provide specific physical limitations, but he also noted that appellant’s electrodiagnostic 

studies of February 17, 2016 demonstrated severe right ulnar neuropathy. He provided permanent 

work restrictions limited her to up to 20 pounds pushing, pulling, and lifting for eight hours per 

day. In a supplemental report dated February 4, 2020, Dr. Larson opined that appellant did not 

require any additional treatment for the accepted conditions. He reiterated that her reported 

9

See C.M., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); JasonC. Armstrong, 40 ECAB 907 (1989);

Charles E. Minnis, 40 ECAB 708 (1989);Vivien L. Minor, 37 ECAB 541 (1986).

10 C.M., id.; M.C.,Docket No. 18-1374 (issued April23, 2019); Del K. Rykert, 40 ECAB 284, 295-96(1988).

11 C.M., id.; 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); KathrynE. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 

364 (1990).

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

13 5 U.S.C. § 8123(a).

14 M.C., Docket No. 20-1396 (issued November 22, 2021); C.M., supra note 8; D.M., Docket No. 18-0746 (issued 

November 26, 2018);R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 1010 (1980).
7

symptoms were out of proportion to objective findings and that her restrictions were due to her 

deconditioned state. The Board finds that Dr. Larson’s reports were internally inconsistent as he 

noted that appellant continued to have residuals of the accepted cubital tunnel syndrome, and that 

her last objective diagnostic study demonstrated severe right ulnar neuropathy, but he concluded 

that she did not require any additional treatment and that her symptoms were out of proportion to 

her objective findings. Dr. Larson also noted that appellant had restrictions due to her 

deconditioned state, but provided permanent restrictions limiting appellant to 20 pounds of lifting, 

pushing, and pulling. The Board has held that medical reports are of limited probative value if 

they are internally inconsistent.15 As Dr. Larson offered inconsistent conclusions regarding 

whether appellant had residuals of her accepted conditions and whether she remained disabled 

from her date-of-injury position, his opinion was of limited probative value. 

OWCP had referred appellant to Dr. Sabin for an impartial medical evaluation; however, 

as no conflict existed in the medical evidence at the time of the referral to Dr. Sabin, the Board 

finds that his reports may not be afforded the special weight of an IME and should instead be 

considered for its own intrinsic value.16 The Board also finds that Dr. Sabin’s August 14, 2020

report was not sufficiently well rationalized to be of probative value and to justify OWCP’s 

termination of appellant’s medical benefits. Dr. Sabin provided only a cursory and minimal 

discussion of the accepted bilateral upper limb ulnar nerve lesion and bilateral cubital tunnel 

syndrome as caused by the October 29, 2010 employment injury. With respect to the resolution 

of these conditions, he simply noted, without elaboration, that appellant’s symptoms were 

exaggerated and out of proportion to her accepted cubital tunnel syndrome. Dr. Sabin diagnosed 

somatization disorder and status post multiple failed bilateral nerve compression surgeries. He

attributed appellant’s many subjective complaints to her somatoform disorder without any 

explanation or supporting rationale, and without addressing whether her diagnosed disorder was 

not causally related to her accepted injury. Dr. Sabin advised that she had no restrictions due to 

the accepted cubital tunnel syndrome and could return to her usual full-time position. He did not 

provide any discussion of when the cubital tunnel syndrome resolved. The Board further notes 

that prior to the January 20, 2021 decision terminating appellant’s compensation benefits, OWCP,

on January 14, 2021, had received Dr. Singleton’s January 7, 2021 report wherein he noted that 

review of a December 17, 2020 EMG demonstrated mild bilateral median neuropathy, moderate 

right chronic ulnar neuropathy, and normal left ulnar nerve. However, OWCP did not request that

Dr. Sabin review Dr. Singleton’s report or the December 17, 2020 EMG study. As Dr. Sabin 

failed to provide adequate medical rationale in support of his opinions regarding the status of 

appellant’s accepted conditions, his opinion was also of limited probative value.

As the medical evidence of record is insufficient to establish that appellant no longer had 

residuals or disability as of January 20, 2021, the Board finds that OWCP failed to meet its burden 

of proof.

15 L.L., Docket No. 18-0861 (issued April5, 2019).

16 Q.S., Docket No. 20-0701 (issued November 10, 2021); see F.R., Docket No. 17-1711 (issued 

September 6, 2018).
8

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective January 20, 2021.17

ORDER

IT IS HEREBY ORDERED THAT the March 12, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed. The May 4, 2021 decision of the Office of 

Workers’ Compensation Programs is set aside as moot.

Issued: June 8, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

17 In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.