United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY,

TRANSPORTATION SECURITY 

ADMINISTRATION, Los Angeles, CA, Employer

__________________________________________

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Docket No. 22-1177

Issued: December 6, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 8, 2022 appellant, through counsel, filed a timely appeal from a July 28, 2022 

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 the case.

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

ISSUE

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

compensation and medical benefits, effective February 8, 2022, as she no longer had disability or 

residuals causally related to her accepted June 21, 2003 employment injury.

FACTUAL HISTORY

On June 21, 2003 appellant, then a 32-year-old transportation security screener, filed a 

traumatic injury claim (Form CA-1) alleging that on that date she felt a sharp tightening sensation 

in her chest when lifting bags while in the performance of duty. She stopped work on the date of 

injury and returned to work without restrictions on July 12, 2003. OWCP initially accepted the 

claim for chest wall strain, resolved, and subsequently expanded the acceptance of the claim to 

include right shoulder impingement syndrome.

3

Appellant stopped work in September 2005 and did not return. OWCP paid her wage-loss 

compensation for total disability on the supplemental rolls effective September 4, 2005, and on the 

periodic rolls effective October 2, 2005. 

In an attending physician’s report (Form CA-20) dated January 3, 2020, Dr. Michael D. 

Smith, a Board-certified orthopedic surgeon, noted a date of injury of June 21, 2003 and diagnosed

cervical and lumbar radiculopathy.

In further form reports dated February 9 and November 5, 2020, Dr. Smith diagnosed 

cervical radiculopathy, bilateral rotator cuff injuries, and lumbar disc disease, but did not note a 

date of injury. He advised that appellant remain off work. 

In a report dated January 13, 2021, Dr. Smith noted that appellant continued to relate 

complaints of pain in the neck, right shoulder, and back. He indicated that her last physical 

examination on November 5, 2020 had revealed tenderness in the right subacromial space and 

cervical and lumbar regions. Dr. Smith noted a date of injury of February 1, 2005 and diagnosed 

right rotator cuff tear, cervical strain, and lumbar strain. He opined that appellant was not capable 

of returning to her preinjury position.

On January 21, 2021 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a series of questionsto Dr. MichaelJ. Einbund, a Board-certified orthopedic surgeon, 

for a second opinion examination. 

In a February 11, 2021 report, Dr. Einbund outlined appellant’s history of injuries on 

June 21 and October 17, 2003 and February 1, 2005 and her subsequent medical treatment. He

noted that her current treatment consisted of medications prescribed by Dr. Smith. Dr. Einbund 

found that appellant currently had no chest wall pain, but that she had complaints of pain in the 

3 OWCP assigned the present claim OWCP File No. xxxxxx862. Appellant sustained two subsequent injuries. 

Under OWCP File No. xxxxxx551, OWCP accepted an October 17, 2003 claim for a sacroiliac strain, and paid 

appellant wage-loss compensation for partial disability on the supplemental rolls from December 2, 2003 through 

January 7, 2005. Under OWCP File No. xxxxxx263, it accepted a February 1, 2005 claim for a cervical strain, 

bilateral shoulder contusions, and a thoracic contusion. OWCP administratively combined the files, with OWCP File 

No. xxxxxx862 serving as the master file. 
3

neck, shoulders, and lower back, with radiation into her arms and left leg and numbness and 

tingling in both hands. With regard to the June 21, 2003 claim, he noted that the SOAF indicated 

that the accepted injuries included chest wall strain, sprain of right shoulder, upper arm, and 

acromioclavicular (AC) joint, and right shoulder impingement syndrome. Dr. Einbund performed 

a physical examination of the right shoulder, where he observeddiffuse tenderness over the deltoid 

and trapezius, a slight loss of active range of motion, and a one-centimeter deficit in 

circumferential measurement of the right upper arm compared to the left. He further noted that 

appellant did not report any symptoms in the chest, and that examination findings for the right 

shoulder were non-specific and unreliable. Dr. Einbund diagnosed chest wall strain, resolved; 

right shoulder and AC sprain, resolved; right shoulder impingement, resolved; left sacroiliac strain, 

resolved; bilateral shoulder contusion, resolved; neck sprain, resolved; and contusion of the back, 

resolved. He opined that the diagnosis of right rotator cuff tear was not established as the MRI 

scan results did not reveal a tear, and that appellant’s examination findings were not consistent 

with a rotator cuff tear. Dr. Einbund further opined that appellant was not suffering from any 

additional medical conditions, including an aggravation injury, which would be medically 

connected to the June 21, 2003 employment injury. He noted that there were no residual 

examination findings attributable to any of appellant’s employment injuries, and that she could 

return to work without restriction, with the exception that she should not lift over 70 pounds due 

to nonwork-related degenerative disease in the cervical spine. 

In form reports dated March 28, May 27, July 9, and September 15, 2021, Dr. Smith 

diagnosed cervical radiculopathy, bilateral rotator cuff injuries, and lumbar degenerative, but did 

not reference a date of injury. He advised that appellant remain off work. 

In a Form CA-20 dated April 6, 2021, Dr. Smith provided a date of injury of June 21, 2003 

and diagnosed an unspecified sprain of sternum and unspecified sprain of the AC joint. He noted 

that he had not released appellant to return to work, and still was prescribing medication.

On April 7, 2021 Dr. Smith disagreed with Dr. Einbund’s opinionsregarding the June 21, 

2003 injury. He noted that he had been treating appellant since 2005,and believed his “conclusions 

regarding her medical status best represent her current condition.”

In a supplemental report dated October 4, 2021, Dr. Einbund indicated that the changes 

noted on diagnostic testing of appellant’s neck were the result of the normal aging process, and 

were not traumatic in nature. He advised that the changes would have been present “even absent 

her incident of injury of September 27, 2005.”

In a report dated November 23, 2021, Dr. Smith noted his review of Dr. Einbund’s 

supplemental report and claimed that all diagnostic testing he had recommended for the past 10 

years had been denied. He noted that he would render an opinion once all testing had been 

authorized.

On December 30, 2021 OWCP issued a notice of proposed termination of appellant’s

wage-loss compensation and medical benefits based on the February 22 and October 4, 2021 

second examination reports from Dr. Einbund. It afforded him 30 days to submit additional 

evidence or argument challenging the proposed termination.

In a report dated January 14, 2022, Dr. Smith reiterated that he disagreed with

Dr. Einbund’s opinions. He outlined the results of May 31, 2005 MRI scans of the left shoulder 
4

and lower back and May 21, 2019 MRI scans of the cervical spine and shoulders. Dr. Smith noted 

physical examination findings of “restricted motion with pain,” and opined that “the conditions 

are still present and the result of the work injury.” He again requested additional diagnostic testing 

relative to the left shoulder and cervical and lumbar areas of the spine. 

By decision dated February 8, 2022, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective that date, finding that the medical evidence of record 

established that she no longer had any residuals related to her accepted work -related medical 

conditions or continued disability from work as a result of the June 21, 2003 employment injury. 

The weight of the medical evidence was accorded to the opinion of the second opinion physician,

Dr. Einbund.

On February 16, 2022 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on May 16, 2022. No 

additional evidence was received.

By decision dated July 28, 2022, OWCP’s hearing representative affirmed the February 8, 

2022 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

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

4 R.G., Docket No. 22-0165 (issued August 11, 2022); 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.L., Docket No. 22-1175 (issued May 11, 2023); 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 R.L., id.; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

See A.M., Docket No. 22-0300 (issued April10, 2023); A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., 

Docket No. 08-1822 (issued August 5, 2009); KathrynE. Demarsh, 56 ECAB 677 (2005); FurmanG. Peake, 41 

ECAB 361 (1990).

8

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).
5

ANALYSIS

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective February 8, 2022, because she no longer had 

disability or residuals causally related to her accepted June 21, 2003 employment injury.

In his February 11, 2021 narrative report, OWCP’s second opinion physician, Dr. Einbund,

discussed appellant’s factual and medical history, and reported the findings of the physical 

examination he conducted on that date. He concluded that appellant had no residuals of the 

accepted June 21, 2003 right shoulder impingement or sprains of the chest wall, right shoulder AC 

joint, or right upper arm. Dr. Einbund noted that a diagnosis of rotator cuff tear was not medically 

supported, and that “the exam[ination] findings today are benign and not consistent with rotator 

cuff tear.” He explained that appellant did not demonstrate objective residuals of the June 21, 

2003 employment injury, had not reported symptoms for the chest, and that the examination 

findings for the right shoulder were nonspecific and unreliable. Dr. Einbund opined that there was 

no need for ongoing medical treatment, and that she was able to perform all strength levels with 

the exception of heavy or very heavy work, which restriction was due to nonoccupational cervical 

spine pathology. In an October 4, 2021 supplemental report, he clarified that appellant’s cervical 

changes resulted from the natural progression of underlying degenerative changes in the cervical 

spine. 

Dr. Einbund based his opinion on a proper factual and medical history and physical 

examination findings, and provided medical rationale for his opinion. His opinion that appellant 

could return to her date-of-injury position was based on an accurate description of appellant’s dateof-injury job duties, the medical evidence of record, and his examination findings regarding 

appellant’s disability status causally related to the June 21, 2003accepted conditions. Dr. Einbund 

further opined that no additional treatment was necessary for the accepted employment injuries. 

The Board finds that his opinion is sufficiently probative, rationalized, and based upon a prior 

factual background, and thus represents the weight of the evidence.

9

In a form report dated April 6, 2021, Dr. Smith noted a date of injury of June 21, 2003 and 

diagnosed an unspecified sprain of sternum and unspecified sprain of the AC joint. He indicated

that he had not released appellant to return to work and was still prescribing medication. In a letter 

dated April 7, 2021, Dr. Smith disagreed with Dr. Einbund’s opinions regarding the June 21, 2003 

injury, and indicated that he had treated appellant since 2005 and believed his “conclusions 

regarding her medical status best represent her current condition.” However, although he 

attributed appellant’s current condition to the June 21, 2003 employment injury, Dr. Smith

provided no medical rationale in his April 6 and 7, 2021 reports. The Board has held that medical 

evidence that states a conclusion, but does not offer a rationalized medical explanation regarding 

the cause of an employee’s condition is of limited probative value on the issue of causal 

relationship.10 In his reports dated February 9 and November 5, 2020 and September 15, 2021,

Dr. Smith diagnosed cervical radiculopathy, bilateral rotator cuff injuries, and lumbar disease and 

recommended appellant remain off work, but did not reference a date of injury. In his report dated 

9 R.L., Docket No. 22-1175 (issued May 11, 2023); J.T., Docket No. 20-1470 (issued October 8, 2021); S.M., 

Docket No. 18-0673 (issued January 25, 2019).

10 S.S., Docket No. 21-1140 (issued June 29, 2022); P.J., Docket No. 18-1738 (issued May 17, 2019); D.H., Docket 

No. 17-1913 (issued December 13, 2018).
6

November 23, 2021, he declined to offer an opinion without further diagnostic testing. On 

January 14, 2022 Dr. Smith provided a date of injury of February 1, 2005 and indicated that he 

disagreed with Dr. Einbund’s opinions, noted only a generalized physical examination finding of 

“restricted motion with pain,” and opined that “the conditions are still present and the result of the 

work injury.” However, none of these reports provided an opinion on whether appellant still had 

residuals or disability due to her accepted June 21, 2003 employment conditions.11 Dr. Smith’s 

reports are, therefore, insufficient to overcome the weight accorded to Dr. Einbund or create a 

conflict of medical opinion.12

As the evidence of record is insufficient to overcome the weight accorded to Dr. Einbund, 

or to create a conflict in medical opinion, the Board finds that OWCP has met its burden of proof.

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective February 8, 2022, as she no longer had disability or 

residuals causally related to her accepted June 21, 2003 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the July 28, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 6, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

11 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12 See M.D., Docket No. 21-0080 (issued August 16, 2022).