United States Department of Labor

Employees’ Compensation Appeals Board

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K.S., Appellant

and

U.S. POSTAL SERVICE, DOMINICK V. 

DANIELS PROCESSING & DISTRIBUTION 

CENTER, Kearney, NJ, Employer

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Docket No. 22-1011

Issued: January 5, 2023

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 17, 2022 appellant, through counsel, filed a timely appeal from a December 22, 

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 December 22, 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 has met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective June 9, 2021, as she no longer had 

disability or residuals causally related to her accepted employment injuries; (2) whether appellant 

has established continuing disability or residuals on or after June 9, 2021 causally related to her 

accepted employment injuries.

FACTUAL HISTORY

On March 16, 2006 appellant, then a 27-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she developed bilateral hand and arm numbness and pain 

due to the repetitive duties of her federal employment. OWCP accepted the claim for bilateral 

joint shoulder derangement and subsequently expanded acceptance of the claim to include bilateral 

carpal tunnel syndrome, bilateral sprain of shoulder and arm sprain coracoclavicular, bilateral 

shoulder region articular cartilage disorder, brachial neuritis or radiculitis, and cervical 

radiculopathy. It authorized left carpal tunnel surgery, which occurred on May 7, 2010; right 

carpal tunnel surgery, which occurred on October 6, 2010; and left rotator cuff repair, left partial 

removal of collar bone, and repair of shoulder, which occurred on September 15, 2011. OWCP

paid appellant wage-loss compensation on the supplemental rolls commencing April 30, 2006 and 

on the periodic rolls commencing February 18, 2007. 

On March 17, 2021 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a copy of the case record, to Dr. Chason S. Hayes, a Board-certified orthopedic 

surgeon, for a second opinion evaluation. An October 9, 2020 SOAF noted that appellant’s claim 

had been accepted for bilateral shoulder and upper arm sprain, bilateral carpal tunnel syndrome, 

brachial neuritis or radiculitis, bilateral shoulder articular cartilage disorder, and cervical 

radiculopathy. It requested that Dr. Hayes evaluate the nature of appellant’s condition, the extent 

of disability, and appropriate treatment for her accepted employment injuries.

In a report dated April 9, 2021, Dr. Hayes noted appellant’s history of injury and medical 

treatment, and reported his findings on physical examination. He advised that appellant had 

informed him that her claim had also been accepted for cervical radiculopathy, but that he had no 

documentation of this. Dr. Hayes reported examination findings of tenderness on cervical 

palpation and range of motion (ROM), decreased cervical ROM, normal bilateral upper extremity 

light touch sensation, normal bilateral shoulder rotation, normal gait, bilateral shoulder tenderness 

with ROM, normal bilateral wrist ROM, and negative bilateral wrist Phalen’s test, Tinel’s sign, 

ulnar grind test, and Finkelstein’s test. He diagnosed cervical radiculopathy, status post bilateral 

carpal tunnel releases, and status post rotator cuff repair. Dr. Hayes indicated that appellant’s 

conditions continued to cause relatively minor hand symptoms and left shoulder symptoms, with 

most of the symptoms attributable to her cervical spine. He advised that appellant had a poor 

prognosis noting the poor outcomes from her prior extensive treatment. While appellant had 

subjective complaints of pain, Dr. Hayes found no supporting objective finding of ongoing 

structural abnormalities. Thus, he concluded that she could return to her date-of-injury job as a 

mail handler.

On April 28, 2021 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits because her accepted bilateral shoulder articular cartilage 

disorder, bilateral brachial neuritis or radiculitis, bilateral carpal tunnel syndrome, cervical 
3

radiculopathy, and bilateral shoulder and upper arm coracoclavicular sprain had resolved. It found 

that the weight of the medical evidence rested with the April 9, 2021 medical report of Dr. Hayes, 

OWCP’s second opinion examiner, who found that she no longer had any disability or residuals 

causally related to her accepted bilateral shoulder, carpal tunnel, or cervical conditions. OWCP 

afforded appellant 30 days to submit additional evidence or argument, in writing, if she disagreed 

with the proposed termination.

OWCP subsequently received progress notes dated May 4, 2021, wherein Anthony 

Robinson, a certified physician assistant, noted that appellant was seen for complaints of neck 

pain. He detailed examination findings and diagnosed cervical radiculopathy, cervicalgia, cervical 

spondylosis, bilateral carpal tunnel syndrome, and other shoulder articular cartilage disorders.

By decision dated June 9, 2021, OWCP finalized the notice of proposed termination of 

appellant’s wage-loss compensation and medical benefits, effective that date. It found that the 

weight of the medical evidence rested with opinion of Dr. Hayes, OWCP’s second opinion 

examiner, who had determined in his April 9, 2021 report that she no longer had residuals or 

disability due to her accepted conditions.

On June 17, 2021 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on October 7, 2021. 

Following the hearing, OWCP received additional evidence. In progress notes dated 

April 7, 2021, Dr. Mark Reznik, an osteopathic physician Board-certified in physiatry, provided 

examination findings and diagnoses of cervicalgia and cervical spondylosis without myelopathy 

or radiculopathy. 

Mr. Robinson, in progress notes dated May 4 and 25, and July 13, 2021, reiterated the 

diagnosis and examination findings from his prior report. 

In reports dated May 13 and July 15, 2021, Dr. Reznik provided examination findings and 

diagnosed cervical radiculopathy. 

By decision dated December 22, 2021, OWCP’s hearing representative affirmed the 

June 9, 2021 termination decision.

LEGAL PRECEDENT -- ISSUE 1

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

termination or modification of benefits.

4

 It may not terminate compensation without establishing 

either that the disability has ceased, or that it is no longer related to the employment.5 OWCP’s 

4

J.C., Docket No. 22-0376 (issued September 20, 2022); A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 

59 ECAB 642 (2008); KellyY. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

J.C., id.; A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 

54 ECAB 734 (2003).
4

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 the employee no longer has residuals of an employment-related condition, 

which require further medical treatment.8

ANALYSIS -- ISSUE 1

The Board findsthat OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 9, 2021.

In an April 9, 2021 report, Dr. Hayes diagnosed cervical radiculopathy, status post bilateral 

carpal tunnel release, and status post rotator cuff repair. He reported that the accepted conditions 

were bilateral carpal tunnel syndrome and bilateral shoulder derangement, and noted that he had

no documentation that cervical radiculopathy had been accepted by OWCP. Dr. Hayes advised 

that appellant’s conditions had not resolved as she continued to have minor symptoms, with most 

of the symptoms attributable to her cervical spine. He advised that her prognosis was poor as she 

had not responded well to prior medical treatment. Dr. Hayes found appellant was capable of 

returning to her job as a mail handler. 

OWCP accepted that appellant sustained bilateral joint shoulder derangement bilateral 

carpal tunnel syndrome, bilateral sprain of shoulder and arm sprain coracoclavicular, bilateral 

shoulder region articular cartilage disorder, brachial neuritis or radiculitis, and cervical 

radiculopathy in the performance of duty. It is well established that a physician’s opinion must be 

based on a complete and accurate factual and medical background. When OWCP has accepted an 

employment condition as occurring in the performance of duty, the physician must base his opinion 

on these accepted conditions.

9

OWCP’s procedures and Board precedent dictate that when an OWCP medical adviser, 

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.

10

 

Dr. Hayes did not rely on the SOAF as a framework in reaching his conclusions. 

Significantly, he only referenced two of the conditions accepted by OWCP and noted the lack of 

6

J.C., id.; R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 

284 (1988).

7

J.C., id.; L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

J.C., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

9 D.T., Docket No. 21-1168 (issued April6, 2022); G.B., Docket No. 20-0750 (issued October 27, 2020); T.P., 58 

ECAB 524 (2007).

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

(October 1990). See also D.T., id.; D.C., Docket No. 21-0780 (issued December 22, 2021); Paul King, 54 ECAB 

356 (2003).
5

documentation that cervical radiculopathy was an accepted condition. The Board, thus, finds that

Dr. Hayes’ report is of diminished probative value and is insufficient to carry the weight of the 

medical evidence.

11

 

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

wage-loss compensation and medical benefits, effective June 9, 2021.

CONCLUSION

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

wage- loss compensation and medical benefits, effective June 9, 2021.12

ORDER

IT IS HEREBY ORDERED THAT the December 22, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: January 5, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

11 Id.

12 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.