United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Lansdowne, PA, Employer

__________________________________________

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Docket No. 22-0019

Issued: July 11, 2022

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

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 October 5, 2021 appellant, through counsel, filed a timely appeal from an April 21, 

2021 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 The Board notes that,following the April21, 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 met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 8, 2020, as he no longer had 

disability or residuals causally related to the accepted February 13, 2019 employment injury; and 

(2) whether appellant has met his burden of proof to establish continuing disability or residuals on 

or after November 8, 2020 causally related to his accepted February 13, 2019 employment injury. 

FACTUAL HISTORY

On February 13, 2019 appellant, then a 56-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured his left elbow when he struck his arm on 

a metal pole next to the ramp while trying to turn a hamper in the performance of duty. OWCP 

accepted the claim for left elbow contusion and strain of other extensor muscle, fascia, and tendon 

at forearm level, left arm. It paid appellant wage-loss compensation on the supplemental 

compensation rolls, effective April 1, 2019, and on the periodic compensation rolls, effective 

March 1, 2020.

On October 18, 2019 OWCP referred appellant to Dr. Noubar A. Didizian, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine whether appellant’s 

accepted conditions had resolved, and whether any other diagnoses should be accepted due to the 

February 13, 2019 employment injury.

In a report dated November 7, 2019, Dr. Didizian related the history of appellant’s 

employment injury, and medical treatment. He noted his review of the statement of accepted facts 

(SOAF) and appellant’s accepted left elbow diagnoses. Dr. Didizian also noted that on the date of 

injury appellant was working part-time limited duty due to a foot injury. He related that appellant 

had reported a history of preexisting left elbow injury at the age of 7, when the left elbow was 

dislocated and reduced. Dr. Didizian explained that appellant’s magnetic resonance imaging 

(MRI) scan findings of loose body, avulsion fracture, and old chronic spurs were long-term 

findings following his elbow dislocation at age 7. He concluded that appellant’s current 

complaints and findings were related to his chronic injury, not his February 13, 2019 acute 

employment injury.

In a May 28, 2020 report, Dr. David C. Raab, an osteopath Board-certified in orthopedic 

surgery, noted appellant’s history regarding the employment injury and that appellant was not 

cleared for left elbow surgery due to new diagnosis of diabetes. He provided examination findings 

of the left elbow, noting mild swelling, moderate tenderness of lateral epicondyle and over the 

olecranon, and limited range of motion. Dr. Raab noted that the testing was limited due to pain. 

He diagnosed partial tear of common extensor tendon of elbow, loose body in left elbow, and left 

elbow arthritis. Dr. Raab referred appellant to physical therapy. He also released him to sedentary 

duty with no use of the left arm.

On August 3, 2020 OWCP referred appellant along with a SOAF for a second opinion 

evaluation with Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, to determine the status 

of his accepted employment-related conditions and whether appellant had any additional workrelated conditions. The SOAF noted the accepted conditions of left elbow contusion and strain of 
3

other extensor muscle, fascia and tendon at forearm level, left arm, and noted that appellant was 

working in a part-time, limited-duty capacity at the time of injury.

4

 

In an August 21, 2020 report, Dr. Hanley noted the SOAF, appellant’s history of injury and 

medical treatment. He indicated that, because of previous injuries, appellant was working limited 

duties four hours a day with marked restrictions at the time of injury. Dr. Hanley also noted that 

appellant had an injury to the left elbow as a child, most likely prior to epiphyseal closure, and that 

the abnormalities of the lateral aspect of the elbow noted on emergency room x-rays were

consistent with an old avulsion-type fracture or possibly a physeal injury. Thus, from an anatomic 

standpoint, he indicated that appellant did not have a normal elbow at the time of the February 13, 

2019 injury and that this abnormality made interpretation of subsequent imaging studies difficult. 

Dr. Hanley further noted that appellant had disengaged from all intervention, in hopes that a 

surgical intervention would solve his elbow problems. In the meantime, he opined that appellant 

has developed limited motion of the elbow and increasing pain to even minimal activity. 

Appellant’s physical examination revealed full pronation and supination, but about 10 degrees 

short of full extension with pain complaints. Dr. Hanley noted no obvious atrophy about the 

extensor or flexor muscles of the forearm and that appellant had a reasonable amount of grip 

strength, despite pain complaints. He indicated there was no deformity of the elbow and that 

appellant withdrew his elbow when he touched the olecranon, which had not been part of the injury 

at any point. Dr. Hanley reported that the magnetic resonance imaging (MRI) scans showed a 

fragment along the lateral epicondyle which was extraarticular and not representative of a lo ose 

body. He further noted that March 4 and June 11, 2019 physical examinations of record by

appellant’s treating orthopedic surgeon were absolutely normal, other than tenderness over the 

lateral epicondyle and that the degree of tenderness was nowhere near what appellant suggested

he has. Dr. Hanley indicated that appellant had an affected allodynia as he could hardly touch the 

lateral elbow. He noted objective findings of limitation of elbow motion in full extension and local 

tenderness over the elbow with subjective reports of intense pain that limited use of the arm almost 

to nothing. Dr. Hanley provided diagnoses of left elbow contusion and tendinosis common 

extensor tendon, left elbow. He indicated that there was no relationship or correlation between the 

objective findings and the subjective complaints, noting that the history of injury did not correlate. 

Dr. Hanley opined that appellant was engaging in symptom magnification. He also opined that 

the work-related conditions resolved, and no further medical treatment was needed. Dr. Hanley 

indicated that appellant was not a surgical candidate, and that surgical intervention would have no 

benefit and may make him worse. He further opined that appellant was capable of performing the 

limited-duty job with restricted weightbearing he was doing at the time of the February 13, 2019 

injury with no restrictions of the upper extremity. Dr. Hanley completed a work capacity 

evaluation (Form OWCP-5c) noting that appellant could perform the restricted-duty position that 

he was performing at the time of the injury.

On September 17, 2020 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits, as the evidence of record established that he no longer had employmentrelated residuals or disability due to his accepted work-related conditions. It afforded him 30 days 

4 The SOAF also noted appellant’s other OWCP cases, including OWCP File No. xxxxxx649, for an accepted strain 

of muscle(s) and tendon(s) of the rotator cuff of left shoulder due to a January 6, 2018 employment injury.
4

to submit additional evidence or argument, in writing, if he disagreed with the proposed 

termination of benefits.

In a September 23, 2020 letter, appellant, through counsel, argued there was an outstanding 

conflict in medical opinion evidence between Dr. Raab and Dr. Hanley. Appellant also submitted 

an October 2, 2020 letter disagreeing with the proposed termination.

In September 29, 2020 prescription notes, Dr. Raab kept appellant off work and prescribed 

a course of physical therapy.

By decision dated October 29, 2020, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective November 8, 2020. It found that the weight of the 

medical evidence rested with Dr. Hanley’s August 21, 2020 opinion that he did not have any 

disability or residuals causally related to the accepted February 13, 2019 employment injury.

On November 4, 2020 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

February 4, 2021. 

In a September 29, 2020 narrative report, Dr. Raab noted the history of appellant’s 

February 13, 2019 employment injury and his medicaltreatmentfollowing the employment injury. 

He noted that appellant reported continued pain in left elbow with restricted range of motion and 

intermittent swelling and weakness. Appellant also indicated that he did not feel that he could 

return to his modified work. Examination findings of the left elbow were provided. Dr. Raab 

diagnosed arthritis of the left elbow and partial tear of common extensor tendon of the elbow for 

which he recommended that appellant remain out of work and resume physical therapy. In a note 

dated November 5, 2020, he related that appellant could return to work four hours a day. In a 

November 10, 2020 report, Dr. Raab related that appellant presented with an elbow problem. He 

also noted “this condition occurred following a specific injury,” which he related occurred at work 

on February 13, 2019. Dr. Raab did not note appellant’s history of a preexisting left elbow 

condition. He diagnosed arthritis of left elbow and opined that appellant could continue current 

work status.

By decision dated April 21, 2021, an OWCP hearing representative affirmed OWCP’s 

October 29, 2020 decision. She found that Dr. Raab had not provided sufficient rationale to create 

a conflict of medical opinion.

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.5 It may not terminate compensation 

without establishing that the disability had ceased or that it was no longer related to the 

5 C.C., Docket No. 19-1062 (issued February 5, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.7

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

entitlement for disability compensation.8 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.9

ANALYSIS -- ISSUE 1

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

compensation and medical benefits, effective November 8, 2020, as he no longer had disability or 

residuals causally related to the accepted February 13, 2019 employment injury.

OWCP based its decision to terminate appellant’s wage-loss compensation and medical 

benefits on the August 21, 2020 opinion of Dr. Hanley, OWCP’s second opinion physician, who 

found that the accepted conditions of left elbow contusion and strain of other extensor muscle, 

fascia and tendon at forearm level, left arm had resolved with no residuals and no further medical 

treatment, including surgical intervention, was needed. Dr. Hanley further opined that appellant 

was capable of performing the limited-duty job with restricted weightbearing he was doing at the 

time of the February 13, 2019 injury with no restrictions of the upper extremity. In his August 21, 

2020 report, he described the February 13, 2019 employment injury, noting the accepted 

conditions as set forth in the SOAF. Dr. Hanley further noted that at the time of injury appellant’s

elbow was not normal due to a prior childhood injury. He related appellant’s physical examination 

findings and reviewed diagnostic testing, specifically noting that the fragment along the lateral 

epicondyle which was extraarticular and not representative of a loose body. Dr. Hanley found 

objective findings of elbow motion limitation in full extension and local tenderness over the elbow

with subjective reports of intense pain that limited use of the arm almost to nothing. He noted 

appellant’s accepted diagnoses, but opined that there was no relationship or correlation between 

the objective findings and the history of injury and appellant’s subjective complaints. Dr. Hanley

further noted that appellant was engaged in symptom magnification. 

The factors that comprise the evaluation of medical opinion evidence include the 

opportunity for and thoroughness of physical examination, the accuracy, or completeness of the

6

See T.M., Docket No. 19-1058 (issued March 30, 2021); G.T., Docket No. 18-01302 (issued October 22, 2019);

A.G., Docket No. 18-0749 (issued November 7, 2018);ElsieL. Price, 54 ECAB 734 (2003).

7 R.R., Docket No. 19-0173 (issued May 2, 2019);Del K. Rykert, 40 ECAB 284 (1988).

8 L.W., Docket No. 18-1372 (issued February 27, 2019); KathrynE. Demarsh, 56 ECAB 677 (2005).

9

See T.M., supra note 6; A.M., Docket No. 18-1243 (issued October 7, 2019); R.P., Docket No. 17-1133 (issued 

January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).
6

physician’s knowledge of the facts and medical history, the care of analysis manifested, and the 

medical rationale expressed in support of the physician’s opinion.10

The Board finds that OWCP properly determined that Dr. Hanley’s opinion constitutes the 

weight of the medical opinion evidence. Dr. Hanley based his opinion on a proper factual and 

medical history and physical examination findings. He explained that appellant had chronic 

objective findings from his prior left elbow injury at age 7. Dr. Hanley noted that appellant’s 

physical examination indicated subjective findings, which did not correlate with objective findings 

and the history of appellant’s employment injury. He further opined that appellant could resume 

the limited-duty job with restricted weightbearing he was performing at the time of injury with no 

restrictions of the upper extremity. The Board finds that Dr. Hanley’s opinion is sufficiently 

probative, rationalized, and based upon a proper factual background11 and it represents the weight 

of the medical evidence at the time of the October 29, 2020 termination decision. Accordingly, 

OWCP properly relied on his second opinion report in terminating appellant’s wage-loss 

compensation and medical benefits for the February 13, 2019 employment injury.12

Dr. Raab, in his May 28, 2020 report, diagnosed partial tear of common extensor tendon 

of elbow, loose body in left elbow, and left elbow arthritis. He referred appellant to physical 

therapy and released him to sedentary duty, with no use of the left arm. In a note dated 

September 29, 2020, Dr. Raab kept appellant off work. However, he did not address in either 

report whether appellant continued to have residuals or disability due to his employment-related 

left upper extremity conditions, based upon objective medical findings. The Board has held that 

medical evidence that does not offer an opinion regarding the cause of an employee’s condition or 

disability is of no probative value.13

As the reports from Dr. Raab are insufficient to overcome the weight of the medical 

evidence accorded to Dr. Hanley’s second opinion, or to create a conflict of medical opinion, the 

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

and medical benefits, effective November 8, 2020.

LEGAL PRECEDENT -- ISSUE 2

When OWCP properly terminates wage-loss compensation and medical benefits, the 

burden shifts to appellant to establish continuing disability or residuals, on or after that date, 

causally related to the accepted employment injury.14 To establish causal relationship between 

10 B.C., Docket No. 16-0978 (issued November 21, 2016); Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M. 

Delaney, 53 ECAB 384 (2002); see also G.I.,Docket No. 14-1857 (issued September 9, 2015).

11 B.C., id.; A.B.,Docket No. 16-0480 (issued August29, 2016).

12 J.T., Docket No. 20-1470 (issued October 8, 2021); C.C., supra note 5; S.M., Docket No. 18-0673 (issued 

January 25, 2019);see also A.F., Docket No. 16-0393 (issued June24, 2016).

13 A.M., Docket No. 18-0562 (issued January 23, 2020); L.B., Docket No. 18-0533 (issued August27, 2018); D.K., 

Docket No. 17-1549 (issued July 6, 2018);LeslieC. Moore, 52 ECAB 132 (2000).

14 E.J., Docket No. 20-0013 (issued November 19, 2020);B.A., Docket No. 17-1471 (issued July 27, 2018); Manuel 

Gill, 52 ECAB 282 (2001).
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continuing residuals and/or disability and the accepted employment injury, an employee must 

submit rationalized medical evidence based on a complete medical and factual background 

supporting such causal relationship.15 

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish continuing 

disability or residuals on or after November 8, 2020 causally related to his accepted February 13, 

2019 employment injury. 

Following the termination of his wage-loss compensation and medical benefits, effective 

November 8, 2020, appellant submitted additional reports from Dr. Raab. In a September 29 

narrative report and a November 10, 2020 report, Dr. Raab noted the history of appellant’s 

February 13, 2019 employment injury and his complaints of continued pain in the left elbow. He

provided examination findings regarding the left elbow. In his September 29, 2020 report,

Dr. Raab diagnosed arthritis of the left elbow and partial tear of common extensor tendon of the 

elbow for which he recommended that appellant remain out of work and resume physical therapy. 

On November 5, 2020 he opined that appellant could return to work four hours a day. In his 

November 10, 2020 report, Dr. Raab diagnosed arthritis of left elbow and opined that appellant 

continue current work status. However, Dr. Raab did not offer an opinion regarding whether

appellant had continuing residuals or disability on or after November 8, 2020 due to the accepted 

employment injury.

16

 As such, Dr. Raab’s reports are insufficient to meet appellant’s burden of 

proof.

As appellant has not submitted rationalized medical evidence establishing that he had 

continuing employment-related disability or residuals, on or after November 8, 2020, due to the 

accepted employment injury, the Board finds that he has not met his burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

compensation and medical benefits, effective November 8, 2020, as he no longer had disability or 

residuals causally related to the accepted February 13, 2019 employment injury. The Board further 

finds that appellant has not met his burden of proof to establish continuing disability or residuals 

on or after November 8, 2020, causally related to his accepted February 13, 2019 employment 

injury. 

15 C.L., Docket No. 18-1379 (issued February 3, 2019);T.M., Docket No. 08-0975 (issued February 6, 2009).

16 Supra note 14.
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ORDER

IT IS HEREBY ORDERED THAT the April 21, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 11, 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