United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Dalton, GA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-1175

Issued: May 11, 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 August 7, 2022 appellant, through counsel, filed a timely appeal from a February 8, 

2022 merit decision and a June 30, 2022 nonmerit 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 the case.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 February 8, 2022, as he no longer had 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June 30, 2022 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

disability or residuals causally related to his accepted November 3, 2020 employment injury; and 

(2) whether OWCP properly determined that appellant abandoned his request for an oral hearing.

FACTUAL HISTORY

On November 3, 2020 appellant, then a 61-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 3, 2020 he injured his leg, arm, neck, shoulders, 

and back when the employing establishment vehicle he was operating was struck from the rear by 

a vehicle at a high rate of speed while in the performance of duty. He stopped work on the date of 

injury. OWCP accepted the claim for sprains of both shoulders, the cervical spine, and the right 

knee. It paid appellant wage-loss compensation for total disability on the supplemental rolls, 

effective January 30, 2021, and on the periodic rolls, effective February 28, 2021. 

In an emergency room report dated November 3, 2020, Dr. Robert Hamilton, an emergency 

medicine specialist, noted that appellant related complaints of pain in the shoulders, knees, right 

elbow, left hip, neck, and back, as well as an abrasion and swelling of the right medial knee, which 

he attributed to being struck from behind while driving his postal van. His physical examination

revealed pain with range of motion in the right knee, mild abrasions of the posterior right elbow 

and medial lower right knee, and muscular tenderness in the neck. Dr. Hamilton obtained x-rays 

of the pelvis, knees, right elbow, and shoulders, which were read as negative for fracture. He 

diagnosed abrasions and sprains of the cervical spine, knees, and shoulders.

Magnetic resonance imaging (MRI) scans of the cervical spine and right knee dated 

December 5, 2020 revealed mild cervical spondylosis with minimal C3-C4 and C4-C5 canal 

stenosis and mild chronic medical and patellofemoral compartment arthropathy, respectively.

In a medical report dated December 17, 2020, Dr. Gary J. Voytik, a Board-certified 

orthopedic surgeon, noted a history of the November 3, 2020 motor vehicle accident (MVA) and 

appellant’s complaints. He performed a physical examination and reviewed the December 5, 2020 

MRI scans. Dr. Voytik diagnosed sprains of both shoulders, cervical spine, and right knee. He

recommended an injection for inflammation relief, which appellant declined, and physical therapy. 

In a separate note of even date, Dr. Voytik released appellant to return to work with the restrictions 

of no driving and no lifting. 

An MRI scan of the left shoulder dated January 27, 2021 demonstrated supraspinatus 

tendinosis with minimal concealed instar-substance partial-thickness footprint tear, subscapularis 

tendinosis, intra-articular long head of the biceps tendinosis, chronic degenerative posterior 

superior labrum, and mild acromioclavicular (AC) degenerative arthrosis. An MRI scan of the 

right shoulder of even date demonstrated supraspinatus and subscapularis tendinosis, intraarticular bicipital tendinosis, and mild AC degenerative arthrosis.

In a follow-up report dated January 29, 2021, Dr. Voytik examined appellant and reviewed 

the January 27, 2021 shoulder MRI scans. He opined that the chronic degenerative nature of the 

labrum and osteoarthritis preexisted the MVA. Dr. Voytik continued appellant’s work restrictions 

and referred him to a shoulder specialist.

In an April 1, 2021 report, Dr. Lucie E. Mitchell, Board-certified in physical medicine and 

rehabilitation, noted that appellant related complaints of right arm numbness and pain in the 

shoulders, neck, right knee, and arm, which he attributed to an MVA on November 3, 2020. She 
3

reviewed his treatment and performed a physical examination, which revealed no swelling, 

erythema, or atrophy in the shoulders, intact range of motion (ROM) and strength, a positive 

Tinel’s sign at the cubital tunnel, bilaterally, and tenderness to palpation of the right knee. 

Dr. Mitchell noted that appellant refused to allow a full examination due to concerns of pain but

was able to internally rotate both shoulders while distracted. She diagnosed neck pain with cervical 

spondylosis, left shoulder pain, and right knee pain and recommended physical therapy, an 

electromyography and nerve conduction velocity (EMG/NCV) study of the upper extremities, and 

an injection in the left shoulder.

On April 23, 2021 Dr. Mitchell performed an intra-articular injection in the left shoulder. 

On May 5, 2021 Dr. Mitchell performed an EMG/NCV study of the upper extremities, 

which revealed evidence of chronic denervation potentials in the right deltoid and biceps and left 

deltoid, biceps, and pronator teres, but no evidence of acute cervical radiculopathy. She opined 

that the results of the study demonstrated chronic changes without any acute or ongoing 

denervation potentials. Dr. Mitchell recommended physical therapy and noted that appellant 

reported 50 percent pain relief after the left shoulder injection.

In a follow-up report dated May 24, 2021, Dr. Mitchell indicated that appellant had pain 

and restricted range of motion in the left upper extremity due to disuse, which resulted in adhesive 

capsulitis. She performed a physical examination and noted that he refused range of motion testing 

of the shoulder but was able to complete internal rotation with distraction while placing his phone 

in his left back pocket. Dr. Mitchell further noted that appellant’s symptoms of weakness and 

numbness in the hands were due to disuse, as he did not have atrophy of the intrinsic hand muscles, 

and her examinations of his cervical spine and knees were objectively normal. She also opined

that his EMG/NCV findings showed chronic symptoms of cervical radiculitis, but no active 

radiculopathy. 

Appellant underwent physical therapy treatment from June 30 through August 12, 2021.

In an attending physician’s report (Form CA-20) dated July 21, 2021, Dr. Mitchell 

diagnosed left shoulder, neck, and right knee pain, and advised that he would be able to return to 

light work on September 1, 2021.

On November 1, 2021 OWCP prepared a statement of accepted facts (SOAF) which listed 

the accepted conditions as left shoulder sprain and impingement syndrome, right shoulder sprain, 

cervical spine sprain, cervicalgia, and right knee sprain.

On November 29, 2021 OWCP referred appellant, along with the medical record, SOAF, 

and a series of questions to Dr. Daniel Robert Schlatterer, a Board-certified orthopedic surgeon, 

for a second opinion evaluation regarding the nature and extent of his employment-related 

conditions and disability. 

In a December 13, 2021 report, Dr. Schlatterer noted his review of the SOAF, as well as 

the medical evidence of record. He acknowledged that the SOAF indicated that appellant’s claim 

was accepted for left shoulder sprain and impingement syndrome, right shoulder sprain, cervical 

spine sprain, cervicalgia, and right knee sprain. Upon examination, Dr. Schlatter documented 50 

percent active and passive ROM in all planes and asymmetric rotation, right greater than left, in 

the neck; a “crick” in the right side of the neck with extension and rotation; AC joint and 

subacromial tenderness bilaterally with widespread global tenderness of both shoulders, without 
4

impingement; normal elbows and wrists; poor forced pinch of thumb and index finger, bilaterally; 

normal hands, except for left thenar flattening; and cog-wheeling throughout the neurological 

examination, which was otherwise normal. He indicated that the examination findings were 

largely non-organic. Dr. Schlatter opined that he “could find no current diagnosis within a degree 

of medical certainty that I could ascribe to an accident 13 months ago” and if appellant did have 

an injury at the time of his accident, it had resolved. Based upon appellant’s clinical presentation, 

he opined that appellant was capable of returning to his date-of-injury job without restrictions. 

On January 6, 2022 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits based on the December 13, 2021 second opinion 

examination report of Dr. Schlatterer. It afforded appellant 30 days to submit additional evidence 

or argument challenging the proposed termination.

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 he no longer had residuals or disability due to his accepted employment injury. 

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

Dr. Schlatterer.

OWCP thereafter received a medical report dated February 8, 2022 by Dr. Mitchell.

On March 5, 2022 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. In support of the request, he submitted an undated statement and 

a narrative report by Dr. Mitchell dated March 4, 2022.

By notice dated May 13, 2022, OWCP’s hearing representative informed appellant that a 

telephonic hearing was scheduled for June 20, 2022 at 10:00 a.m. Eastern Standard Time (EST). 

The notice provided the toll-free number to call and appropriate passcode to access the hearing. 

The hearing representative mailed the notice to appellant’s last known address of record.

By notice dated May 16, 2022, OWCP’s hearing representative informed appellant that the 

hearing was rescheduled for June 17, 2022 at 10:00 a.m. EST. The hearing representative mailed 

the updated notice to appellant’s last known address of record.

By decision dated June 30, 2022, an OWCP hearing representative found that appellant 

had abandoned his request for an oral hearing as he had received written notification of the hearing 

30 days in advance but failed to appear. The hearing representative further found that there was 

no indication in the case record that he had contacted the Branch of Hearings and Review either 

prior to or after the scheduled hearing to explain his failure to appear.

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.3 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 

3 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

the employment.4 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background. 5

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

entitlement for disability compensation.6 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.7

ANALYSIS -- ISSUE 1

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

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

residuals causally related to the accepted November 3, 2020 employment injury.

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

benefits on the December 13, 2021 opinion of Dr. Schlatterer, OWCP’s second opinion physician, 

who found that the accepted conditions of left shoulder sprain and impingement syndrome, right 

shoulder sprain, cervical spine sprain, cervicalgia, and right knee sprain had resolved with no 

residuals and no further medical treatment was needed. Dr. Schlatterer further opined that 

appellant was capable of performing his time-of-injury job without restrictions. He described the 

November 3, 2020 employment injury, noting the accepted conditions as set forth in the SOAF.

Dr. Schlatterer further noted appellant’s physical examination findings, which were largely nonorganic including widespread global tenderness of both shoulders and cog-wheeling throughout 

the neurological examination. He noted the accepted diagnoses and opined that there was no 

relationship or correlation between the objective findings and appellant’s current subjective 

complaints. He further opined that if appellant did have an injury at the time of his accident, it had 

resolved.

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 

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.8

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

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

and medical history and physical examination findings. He noted that appellant’s physical 

examination indicated subjective findings, which did not correlate with objective findings and the 

4

See R.P., Docket No. 17-1133 (issued January 18, 2018); JasonC. Armstrong, 40 ECAB 907 (1989); CharlesE. 

Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).

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

6 A.G., Docket No. 19-0220 (issued August1, 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).

7

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

8 K.R., Docket No. 22-0019 (issued July 11, 2022); B.C., Docket No. 16-0978 (issued November 21, 2016); 

NicoletteR. Kelstrom, 54 ECAB 570 (2003); Anna M. Delaney, 53 ECAB 384 (2002); see also G.I., Docket No. 14-

1857 (issued September 9, 2015).
6

history of appellant’s employment injury. Dr. Schlatterer further opined that he could resume his 

time-of-injury position without restrictions. The Board finds that his opinion is sufficiently 

probative, rationalized, and based upon a proper factual background9 and it represents the weight 

of the medical evidence at the time of the February 8, 2022 termination decision. Accordingly, 

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

compensation and medical benefits for the November 3, 2020 employment injury.10

Dr. Mitchell, in her May 24, 2021 report, indicated that appellant had pain and restricted 

range of motion in the left upper extremity and symptoms of weakness and numbness in the hands, 

all due to disuse as no objective atrophy was present. She further noted that he refused range of 

motion testing in the shoulders but could complete internal rotation with distraction, had an 

objectively normal examination of the cervical spine and knees, and that his EMG/NCV findings 

showed chronic symptoms of cervical radiculitis but no active radiculopathy. In a Form CA-20 

dated July 21, 2021, Dr. Mitchell diagnosed left shoulder, neck, and right knee pain, and advised 

that appellant would be able to return to light work on September 1, 2021. However, she did not 

address in either report whether he continued to have residuals or disability due to his accepted 

employment-related 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.11

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

evidence accorded to Dr. Schlatterer’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 February 8, 2022.

LEGAL PRECEDENT -- ISSUE 2

A claimant who has received a final adverse decision by OWCP may obtain a hearing by 

writing to the address specified in the decision within 30 days of the date of the decision for which 

a hearing is sought.12 Unless otherwise directed in writing by the claimant, OWCP’s hearing 

representative will mail a notice of the time and place of the hearing to the claimant and any 

representative at least 30 days before the scheduled date.13 OWCP has the burden of proving that 

it properly mailed to a claimant and any representative of record a notice of a scheduled hearing.14

9 B.C., id.; A.B., Docket No. 16-0480 (issued August 29, 2016).

10 J.T., Docket No. 20-1470 (issued October 8, 2021); S.M., Docket No. 18-0673 (issued January 25, 2019); see 

also A.F., Docket No. 16-0393 (issued June 24, 2016).

11 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); Leslie C. Moore, 52 ECAB 132 (2000).

12 20 C.F.R. § 10.616(a).

13 Id. at § 10.617(b).

14 A.R., Docket No. 19-1691 (issued February 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); 

Michelle R. Littlejohn, 42 ECAB 463(1991).
7

A claimant who fails to appear at a scheduled hearing may request in writing, within 10 

days after the date set for the hearing, that another hearing be scheduled. Where good cause for 

failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 15

The failure of the claimant to request another hearing within 10 days, or the failure of the 

claimant to appear at the second scheduled hearing without good cause shown, shall constitute 

abandonment of the request for a hearing.16

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly determined that appellant abandoned his request for 

an oral hearing.

The record establishes that on May 16, 2022 in response to appellant’s request for an oral 

hearing, a representative of OWCP’s Branch of Hearings and Review properly mailed a notice of 

the scheduled telephonic hearing to be held on June 17, 2022 at 10:00 a.m., EST. The hearing 

notice was mailed to appellant at his last known address of record and provided instructions for 

participation. Appellant, however, failed to call in for the scheduled hearing using the provided

telephone number and passcode. He did not request a postponement or provide an explanation to 

OWCP for his failure to attend the hearing within 10 days of the scheduled hearing. The Board, 

thus, finds that OWCP properly determined that appellant abandoned his request for a telephonic 

oral hearing.17

CONCLUSION

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

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

residuals causally related to the accepted November 3, 2020 employment injury. The Board 

further finds that OWCP properly determined that he abandoned his request for an oral hearing.

15 Supra note 12 at § 10.622(f).

16 Id.; M.C., Docket No. 21-0351 (issued June 29, 2021); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Hearings and Review of the Written Record,Chapter 2.1601.6(g) (October 2011); see also A.J., Docket No. 18-0830 

(issued January 10, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

17 Id.
8

ORDER

IT IS HEREBY ORDERED THAT the February 8 and June 30, 2022 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: May 11, 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