United States Department of Labor

Employees’ Compensation Appeals Board

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B.C., Appellant

and

DEPARTMENT OF THE NAVY, ALAMEDA 

NAVAL AIR STATION, CA, Employer

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Docket No. 20-1672

Issued: February 8, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On September 29, 2020 appellant filed a timely appeal from a September 17, 2020 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

ISSUE

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

compensation and medical benefits, effective September 18, 2020, as she no longer had disability 

or residuals causally related to her accepted January 8, 1983 employment injury.

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On January 8, 1983 appellant, then a 36-year-old computer operator, alleged that she 

sustained a traumatic injury when moving magnetic tapes while in the performance of duty. 

OWCP accepted the claim for left arm tendinitis and thoracic outlet syndrome, left reflex 

sympathetic dystrophy, and right carpal tunnel syndrome. Appellant stopped work entirely on 

September 12, 1984 and OWCP paid her wage-loss compensation on the periodic rolls. During 

the 1990’s, she worked sporadically. On July 23, 1993 appellant underwent left shoulder surgery. 

She thereafter underwent a regimen of vocational rehabilitation. On April 17, 2000 appellant

underwent an OWCP-authorized cervical discectomy and fusion at C5-6.

4

 She was released to 

full-time modified duty on March 29, 2001. On September 19, 2005 appellant returned to work in 

a computer specialist position at Camp Lejeune, North Carolina. 

By decision dated January 5, 2006, OWCP terminated appellant’s wage-loss compensation

and medical benefits based on a finding that her accepted conditions of right carpal tunnel 

syndrome, calcifying tendinitis of the left shoulder, thoracic outlet syndrome, and degenerative 

disc disease of the cervical spine had resolved. On January 10, 2006 appellant requested a hearing 

before a representative of OWCP’s Branch of Hearings and Review. By decision dated June 1, 

2006, OWCP’s hearing representative reversed the termination of compensation benefits. The 

hearing representative noted that appellant’s treating physician had recommended a cervical fusion 

at C5-6 in 2000, which was subsequently authorized, and appellant underwent, although the basis 

for the authorization was unclear.

On or about November 4, 2006 appellant stopped work again and filed a recurrence claim. 

She retired on disability, effective January 3, 2007, and elected to receive FECA compensation in 

lieu of Office of Personnel Management retirement benefits, effective November 13, 2006. 

Following further development, OWCP resumed paying appellant wage-loss compensation on the 

periodic rolls as of September 4, 2007.

A statement of accepted facts (SOAF) dated December 4, 2009 related that appellant’s 

claim was accepted for left arm tendinitis and thoracic outlet syndrome, left reflex sympathetic 

dystrophy, and right carpal tunnel syndrome. It also noted that in 2000 OWCP erroneously 

authorized a cervical surgery for a condition which had not been accepted. 

OWCP expanded the acceptance of the claim to include displacement of cervical 

intervertebral disc without myelopathy, cervical post-laminectomy syndrome, and intervertebral 

cervical disc disorder with myelopathy.

3 Docket No. 08-0239 (issued October 20, 2008); Docket No. 12-0398 (issued December 18, 2012). 

4 Appellant was involved in a nonindustrial automobile accident in 1986 during which she sustained a cervical 

injury. 
3

OWCP subsequently received medical progress reports dated November 22 and

December 20, 2019, and February 10, 2020 from Dr. Swachitha Kothapally, a family medicine

specialist. In her November 22, 2019 report, Dr. Kothapally noted that the reason for the 

appointment was to fill out workman’s compensation paperwork. She diagnosed cervicalgia and 

unqualified vision loss, left eye. In the December 20, 2019 and February 10, 2020 reports,

Dr. Kothapally continued to diagnose cervicalgia, which appellant had experienced since a fall at 

work many years ago. She noted, in the February 10, 2020 report, that appellant’s chronic neck 

pain was aggravated from the last few weeks, and that she reported difficulty swallowing solid and 

liquid foods during neck pain flare-ups. Dr. Kothapally checked appellant’s thyroid and 

additionally reported on her blurry vision. OWCP also received a March 13, 2020 report from a 

nurse practitioner, laboratory testing, and diagnostic testing, including a March 13, 2020 soft-issue 

ultrasound of the neck and an April 10, 2020 computerized tomography scan of the neck.

On June 29, 2020 OWCP referred appellant, together with the December 4, 2009 SOAF, 

the medical record, and a series of questions, to Dr. John G. Keating, a Board-certified orthopedic 

surgeon, for a second opinion to evaluate her continued disability. The December 4, 2009 SOAF 

provided noted that on January 8, 1983 appellant suffered a traumatic injury while carrying 

magnetic tapes weighing approximately two pounds each. It also noted that it had erroneously 

authorized a cervical surgery, which appellant underwent on April 27, 2000.

In a July 20, 2020 report, Dr. Keating related that appellant incurred injury due to carrying 

10 tapes in each arm, which amounted to a 40-pound load. He noted his review of the medical 

record and objective testing and presented examination findings. Dr. Keating indicated that 

appellant’s case appeared to be extremely complex on the surface and extended back almost 40 

years, based on his review of the medical record and his physical examination, she had reached 

maximum medical improvement. On physical examination, he indicated that appellant had no 

current active diagnoses that he could ascribe to carrying magnetic tapes in both upper extremities 

in 1983 and that the work-related conditions had resolved. Dr. Keating indicated that there was 

no physical stigmata of complex regional pain syndrome or ongoing active muscular denervation 

of the upper extremities which he could relate to the 1983 accident or any other injury that he could 

causally ascribe to carrying a load of magnetic tapes in each arm, whether it was 2 pounds as 

described in the SOAF or 40 pounds as appellant described. He noted that the 1984 examination 

by Dr. Michael S. Baker, a Board-certified general surgeon, was the examination in closest 

proximity to her accident. Dr. Keating indicated that the examination was relatively normal with 

the exception of some weakness in the intrinsic muscles of the hand, which was not readily 

reproducible, with no obvious atrophy and no signs or evidence of a complex regional dystrophy 

syndrome or thoracic outlet syndrome. Dr. Keating also noted that appellant’s complaints were 

more severe than her physical findings on Dr. Baker’s examination and the laboratory studies. He

indicated that there were multiple medical reports in appellant’s file, which returned her to work 

without any further treatment referable to her January 8, 1983 claim and which repeatedly 

indicated that she had no residuals of carpal tunnel or tendinitis, no signs of complex regional 

dystrophy, but perhaps some mild signs of thoracic outlet syndrome without any explanation of 

how this could have been the result of the 1983 injury. Dr. Keating noted that appellant received 

the diagnosis of thoracic outlet syndrome one decade following her January 8, 1983 injury. He 

opined that appellant had been treated for all the conceivable problems originating from her 1983 

injury and that his examination found no residual of any problem lingering 37 years following the 

injury as described in the chart and by appellant. Based on the SOAF, Dr. Keating opined that 
4

there were no residuals or ongoing evidence of a disability causally related to the January 8, 1983 

injury. He indicated that most of the major surgeries appellant had involved her cervical spine, 

which had not been accepted as compensable. Dr. Keating also noted that the first nerve 

conduction study in 2007 was, in and of itself, so remote from her 1983 injury that it was not 

reasonable to ascribe any abnormalities to that injury. Furthermore, he advised that carrying 

magnetic tapes over 30 years ago, even if it did cause carpal tunnel, would be resolved following 

the successful carpal tunnel release of the right wrist as there were no signs of thenar eminence 

flattening and no active signs of a median nerve irritation on his examination. Dr. Keating noted 

that the SOAF indicated that the left arm tendinitis, thoracic outlet, left reflex sympathetic 

dystrophy, and right carpal tunnel syndrome were compensable conditions and that he found no 

objective evidence on examination of ongoing organic stigmata reasonably related to the 1983 

injury and there was no permanent residuum or disability. He also completed a work capacity 

evaluation (Form OWCP-5c) in which he opined that appellant could return to her date-of-injury 

position with no restrictions.

By notice dated August 11, 2020, OWCP advised appellant that it proposed to terminate 

her wage-loss compensation and medical benefits based on Dr. Keating’s opinion that the 

January 8, 1983 accepted conditions had ceased without residuals or disability. It afforded her 30 

days to submit additional evidence or argument challenging the proposed termination.

By decision dated September 17, 2020, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective September 18, 2020, based on Dr. Keating’s second 

opinion. 

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.5 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.6 Its 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 

5 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).

6 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).

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

8 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).
5

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

require further medical treatment.9

ANALYSIS

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

wage-loss compensation and medical benefits, effective September 18, 2020.

OWCP referred appellant to Dr. Keating for a second opinion evaluation to determine the 

status of her accepted conditions and work capacity. In his July 20, 2020 report, Dr. Keating 

opined that the accepted work-related conditions had resolved and that appellant could return to 

her date-of-injury position. While Dr. Keating included the compensable conditions of left arm 

tendinitis, thoracic outlet, left reflex sympathetic dystrophy, and right carpal tunnel syndrome in 

his list of accepted conditions and conducted a physical examination for those conditions, he did 

not note acceptance of appellant’s cervical conditions. The December 4, 2009 SOAF presented to

Dr. Keating noted that OWCP had erroneously authorized a cervical surgery for a cervical 

condition it had not accepted. The Board finds, however, that the record reflects that appellant 

underwent an authorized cervical surgical procedure and OWCP subsequently accepted residuals 

stemming from that procedure, including displacement of cervical intervertebral disc, postlaminectomy syndrome and intervertebral disc disorder with myelopathy.10

OWCP’s procedures provide that when a DMA, second opinion specialist, or referee 

physician renders a medical opinion based on a SOAF which is incomplete or inaccurate, or does 

not use the SOAF as the framework in forming his or her opinion, the probative value of the 

opinion is seriously diminished or negated altogether.11 OWCP did not provide Dr. Keating with 

a complete SOAF as it did not identify all of appellant’s accepted conditions. As Dr. Keating’s 

opinion was not based on a proper SOAF, it is of diminished probative value.

12

 The Board thus 

finds that OWCP failed to meet its burden of proof.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 18, 2020. 

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

10 See supra note 4. 

11 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990).

12 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the September 17, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: February 8, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board