United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Lithia Springs, GA, Employer

__________________________________________

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Docket No. 19-1023

Issued: June 16, 2020

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, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 10, 2019 appellant, through counsel, filed a timely appeal from a March 8, 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.

 

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 August 18, 2018, as she no longer had residuals or 

disability causally related to her accepted April 19, 2011 employment injury. 

FACTUAL HISTORY

On April 21, 2011 appellant, then a 51-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on April 19, 2011 she injured the right side of her neck when a car 

backed into the side of her vehicle while in the performance of duty. She stopped work on 

April 19, 2011 and returned to work on June 27, 2011 for four hours per day with restrictions. 

Appellant stopped work again on July 5, 2011 and did not return. OWCP accepted the claim for 

neck sprain. It subsequently expanded acceptance of the claim to include right brachial neuritis or 

radiculitis and right bicipital tenosynovitis. OWCP paid appellant wage-loss compensation on the 

periodic rolls beginning September 25, 2011.

By decision dated April 26, 2013, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective May 5, 2013. By decision dated October 30, 2013, an OWCP 

hearing representative affirmed the April 26, 2013 termination decision. She, however, remanded 

the case after finding a conflict in medical opinion evidence now existed between appellant’s 

treating physician, Dr. Gregory S. Slappey, and a second opinion physician, Dr. Alexander N. 

Doman, both Board-certified orthopedic surgeons, on the issue of continuing residuals or 

disability. Following further development, OWCP reinstated appellant’s compensation benefits.3

In letters dated August 11 and October 4, 2017, OWCP advised appellant that it had not 

received a medical report from her physicians within the past year. It requested that she submit a 

detailed report from her treating physician addressing whether she had continued objective 

findings, residuals of her employment-related condition, and her ability to work with or without 

restrictions.

In a report dated September 1, 2017, Dr. Douglas H. Murray, a Board-certified orthopedic 

surgeon, discussed appellant’s complaints of right shoulder pain. He noted that the cause of her

shoulder pain was multifactorial as she had biceps tendon subluxation, impingement, 

acromioclavicular (AC) arthritis, and secondary scapulothoracic pain. Dr. Murray noted that 

appellant had been diagnosed with rheumatoid arthritis since he last examined her on 

December 11, 2015. On examination of the right shoulder he found full shoulder motion with “a 

significant hitch and pain,” tenderness of the bicep with subluxation of the tendon on specific 

maneuvers, intact, but painful cuff strength, positive impingement signs, and scapulothoracic pain. 

Dr. Murray found that appellant had right shoulder pain with a biceps tendon subluxation, partial 

thickness cuff tearing, impingement, and AC arthropathy with probable secondary scapula 

winging. He diagnosed shoulder pain, bicipital tenosynovitis, and subacromial impingement. 

Dr. Murray opined that appellant’s diagnoses appeared related to her employment injury based on 

when they began and their failure to improve with treatment since that time. He noted that she had 

 

3 By decision dated April 21, 2014, OWCP denied authorization for right shoulder arthroscopic surgery. On 

January 13, 2015 an OWCP hearing representative affirmed the April 21, 2014 decision.
3

periscapular pain, but that the shoulder condition seemed to cause the periscapular symptoms. 

Dr. Murray recommended surgery for biceps tendon management as well as a decompression, 

distal clavicle excision, and possible cuff treatment. He provided work restrictions, including no 

overhead work or lifting over 10 pounds.

On March 22, 2018 OWCP referred appellant, together with a statement of accepted facts, 

the medical record, and a list of questions, to Dr. Howard B. Krone, a Board-certified orthopedic 

surgeon, for a second opinion evaluation to determine whether she continued to have residuals and 

disability due to the accepted employment injury.

In an April 19, 2018 report, Dr. Krone reviewed the history of injury and the medical 

evidence of record. On examination he found no tenderness on palpation of the cervical spine or 

trapezius. Dr. Krone noted that appellant’s motor examination was difficult to perform, as she 

pulled away with any movement of the right shoulder. On examination of the right shoulder he

observed global tenderness on palpation without specific tenderness over the AC joint, bicipital 

tendon, and glenohumeral joint. Dr. Krone noted a sound with movement, which he attributed to 

scapulothoracic bursitis. He observed limited range of motion of the shoulders. Dr. Krone noted 

that appellant had problems with her right shoulder and neck that preexisted her employment 

injury. He advised that her neck sprain would have resolved within four weeks. Dr. Krone

indicated that a physician had initially diagnosed brachial neuritis or radiculitis, which had not 

been demonstrated by a magnetic resonance imaging (MRI) scan, and right bicipital tenosynovitis. 

He related that any bicipital tendon tenderness should have resolved with injections and over time

and found no evidence supporting a diagnosis of bicipital subluxation. Dr. Krone opined that 

appellant had no residuals of her employment-related conditions, noting that the findings on 

physical examinations and on functional capacity evaluations were inconsistent. He related, “The 

initial injuries have resolved and there are no residual injuries. [Appellant’s]subjective complaints 

have not been borne out by imaging, history, or physical examination.” Dr. Krone found that she

could perform her usual employment duties. He advised that appellant had nonemploymentrelated rheumatoid arthritis, which would preclude her return to employment.

On July 3, 2018 OWCP provided appellant with a notice of proposed termination of her 

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

that she no longer had any residuals or continuing disability from her work injury. It determined 

that the weight of the medical evidence rested with the April 19, 2018 report of Dr. Krone. OWCP 

afforded appellant 30 days to submit additional evidence or argument. No additional evidence or 

argument was received within this time frame.

By decision dated August 23, 2018, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective August 18, 2018. It found that the opinion of

Dr. Krone constituted the weight of the medical evidence and established that she had no further 

residuals or disability causally related to her accepted employment injury.4

 

4 The August 23, 2018 termination decision superseded an August 14, 2018 termination decision. OWCP paid 

appellant compensation through August 18, 2018.
4

On August 29, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative regarding the August 23, 2018 termination decision.

A telephonic hearing was held on January 9, 2019. The record was held open for 30 days 

for the submission of additional medical evidence. No additional medical evidence was received 

within this time frame.

By decision dated March 8, 2019, an OWCP hearing representative affirmed the 

August 23, 2018 termination decision.

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of justifying termination or modification of 

compensation. After it has been determined that an employee has disability causally related to his 

or her employment, OWCP may not terminate compensation without establishing that the 

disability had ceased or that it was 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.7 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.8

Section 8123(a) of FECA provides, in pertinent part, that 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 

ANALYSIS

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits as there is an unresolved conflict in the medical evidence 

between appellant’s treating physician, Dr. Murray, and the second opinion physician,

Dr. Krone.10

 

5 M.C., Docket No. 18-1374 (issued April 23, 2019); L.H., Docket No. 17-1859 (issued May 10, 2018); Jason C. 

Armstrong, 40 ECAB 907 (1989).

6 M.C., id.; see Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7 M.C., Docket No. 18-1199 (issued April 5, 2019); see L.H., supra note 5; T.P., 58 ECAB 524 (2007); Kathryn E. 

Demarsh, 56 ECAB 677 (2005).

8 M.C., id.; see L.H., supra note 5; Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

9 5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

10 See L.H., supra note 5.
5

In a report dated September 1, 2017, Dr. Murray evaluated appellant for complaints of right 

shoulder pain. On examination of the right shoulder he noted full motion with pain and a 

significant hitch, tenderness of the bicep with subluxation of the tendon on specific maneuvers, 

intact, but painful cuff strength, positive impingement signs, and scapulothoracic pain. Dr. Murray 

diagnosed right shoulder pain, bicipital tenosynovitis of the right shoulder, and subacromial 

impingement of the right shoulder. He further noted that appellant had a biceps tendon 

subluxation, partial thickness cuff tearing, impingement, and AC arthropathy with probable 

secondary scapula winging. Dr. Murray opined that her diagnoses were causally related to the 

employment-related motor vehicle accident of April 19, 2011 given when her problems began and 

as she had been treated since that time without improvement. He provided work restrictions. 

In an April 19, 2018 report, Dr. Krone opined that appellant had no residuals specifically 

attributable to the work-related conditions, noting that examinations by multiple physicians had 

yielded inconsistent findings on physical examination. He explained that appellant’s neck sprain 

resolved in four weeks in his experience with conservative treatment, that her right brachial neuritis 

or radiculitis had never been demonstrated by a MRI scan revealing nerve root involvement, and 

that she received no apparent local injury to the right shoulder that would explain bicipital 

subluxation. Dr. Krone observed that appellant’s subjective complaints had not been borne out by 

imaging, history, or physical examination. He found that she was able to perform her date-ofinjury position as a rural carrier, but also advised that her symptoms of nonwork-related 

rheumatoid arthritis precluded her return to productive and suitable employment.

Accordingly, at the time OWCP terminated appellant’s compensation on August 23, 2018, 

there remained an unresolved conflict in the medical opinion evidence as to whether appellant had 

residuals and disability from the accepted April 19, 2011 employment conditions.

11

 Dr. Krone 

concluded that she had no residuals or disability and that the accepted conditions had resolved, or 

were misdiagnosed. Dr. Murray, in his September 1, 2017 report, discussed appellant’s continuing 

symptomatology, including for the accepted condition of bicipital tenosynovitis, and opined that 

she continued to have employment-related residuals and disability.

It is well established that when there exists opposing medical reports of virtually equal 

weight and rationale, the case should be referred to an impartial medical specialist for the purpose 

of resolving the conflict.12 OWCP should have properly resolved the conflict prior to termination 

of compensation.13 As OWCP failed to resolve the conflicting medical opinion evidence, the 

Board finds that it did not meet its burden of proof to terminate benefits.14

 

11 See J.S., Docket No. 15-0872 (issued September 28, 2016).

12 Supra note 10.

13 L.H., supra note 5; R.R., Docket No. 15-0380 (issued April 10, 2015); S.J., Docket No. 14-1821 (issued 

January 23, 2015).

14 See J.S., supra note 11; V.Y., Docket No. 14-0828 (issued November 14, 2014).
6

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 18, 2018, as she no longer had residuals 

or disability causally related to her April 19, 2011 accepted employment injury.

ORDER

IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: June 16, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board