V.H. and U.S. Postal Service, Post Office, Baltimore, MD (Board decision, June 26, 2018)

ECAB final decision. The Board affirmed OWCP’s November 2, 2016 decision upholding termination of V.H.’s wage-loss compensation and medical benefits. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

V.H., a postal city carrier, received benefits for accepted left ankle and foot sprains after a work injury. OWCP later terminated her wage-loss compensation and medical benefits, relying on a second-opinion orthopedist who found that the accepted conditions had resolved. V.H. described continuing swelling and difficulty moving some toes. The Board found the physician’s examination and explanation persuasive and noted that no current treating physician report contradicted it. It affirmed OWCP’s termination of benefits effective February 22, 2016.

Decision snapshot

• Authority: FECA rule placing the burden on OWCP to justify terminating accepted benefits, 5 U.S.C. § 8101 et seq.
• Outcome: Termination of wage-loss compensation and medical benefits effective February 22, 2016 affirmed.
• Key point: An uncontradicted, reasoned second-opinion report supported a finding that the accepted conditions had resolved.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
V.H., Appellant
)
)
and ) Docket No. 17-0382
) Issued: June 26, 2018
U.S. POSTAL SERVICE, POST OFFICE,
)
Baltimore, MD, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 12, 2016 appellant, through counsel, filed a timely appeal from a November 2, 2016 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.
 ISSUE

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective February 22, 2016.

FACTUAL HISTORY

On January 14, 2011 appellant, then a 35-year-old city carrier, filed a traumatic injury claim alleging that, on that date, she twisted her left foot and ankle while in the performance of duty and stopped work that day.

On April 6, 2011 OWCP accepted the claim for left ankle sprain and left foot sprain. It provided wage-loss compensation benefits and she was placed on the periodic rolls.

In a May 8, 2012 report, Dr. Bradley Lamm, Board-certified in reconstructive rear-foot and ankle surgery, noted that appellant indicated she was limited with walking and standing for long periods of time and admitted to her ankle giving out on her. He diagnosed tarsal tunnel syndrome and complex regional pain syndrome. Dr. Lamm recommended a physical therapy treatment plan.

By letter dated August 31, 2014, OWCP requested that the treating physician, Dr. Lamm, provides an update regarding appellant’s current condition and capabilities.

In a September 16, 2014 report, Dr. Lamm, examined appellant and provided findings which included that appellant had dorsiflexion within normal limits. Additionally, he determined that there was no pin point metatarsal palpation pain, but she had pain over the fourth metatarsal diffusely along with pain over the anterior and lateral gutters. Dr. Lamm determined that appellant had mild swelling and that her digits three, four, and five had minimal flexion. He also noted that her second digit still maintained normal flexion. Dr. Lamm advised that appellant was seen for follow up of complex regional pain syndrome and tarsal tunnel syndrome, which seemed to have improved.

On December 9, 2015 OWCP referred appellant for a second opinion examination, along with a statement of accepted facts, a set of questions, and the medical record to Dr. Robert A. Smith, a Board-certified orthopedist.

In a report dated January 8, 2016, Dr. Smith described appellant’s history of injury and treatment and examined appellant. His findings included: that the ankle revealed no deformity or swelling; that there were no dystrophic signs in the leg or foot: there was active motion in the first, second and third toes; but appellant did not actively move her fourth and fifth toes. Dr. Smith related that there was satisfactory and functional range of motion of the ankle and subtalar joints without any instability or crepitation. He also found no atrophy in the calf musculature and motor strength in the muscles and one foot and ankle was satisfactory. Dr. Smith also determined that there were no tendon problems, a normal arch, and neurovascular status was intact.

Dr. Smith specifically opined that appellant had fully recovered from the work injury of a left ankle sprain related to the January 14, 2011 incident and that there was nothing that warranted that the case be expanded to include any additional diagnoses. Additionally, Dr. Smith noted there were no preexisting conditions that would impact the case. He explained that there was nothing

2 objective on physical examination with respect to the accepted left ankle condition. Dr. Smith noted that it had in fact resolved without residuals and would not result in any ongoing physical limitation, restriction, and/or disability related to the claim. He advised that appellant was at maximum medical improvement related to the claim and that there was nothing objective that would indicate that appellant required ongoing or future testing, medical care, and or physical therapy, reflexology, or any other type of treatment related to the claim. Dr. Smith indicated that appellant reached maximum medical improvement.

On January 19, 2016 OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits as the medical evidence of record established that she no longer had any residuals or continuing disability from work. It accorded the weight of the evidence to Dr. Smith, who found that she no longer had any residuals or continuing disability from work stemming from her work-related injury of January 14, 2011. OWCP informed appellant of the type of evidence needed to support her claim and requested that she submit such evidence within 30 days.

In February 18, 2016 statements, appellant indicated that she had a video clip and photographs of her current condition of her left ankle and foot injury. However, no video was received. Appellant noted that she had three toes that did not move and pivoting leftward was not normal range of motion. She also indicated that swelling was still regular.

On February 22, 2016 OWCP terminated appellant’s compensation, effective that date, finding that she no longer had any employment-related residuals or disability. It found that the weight of the evidence rested with Dr. Smith, who determined that appellant could return to her date-of-injury job and that the residuals of the accepted conditions had ceased.

On March 1, 2016 counsel for appellant requested a telephonic hearing, which was held on September 22, 2016.

By decision dated November 2, 2016, OWCP’s hearing representative affirmed the February 22, 2016 termination decision.

LEGAL PRECEDENT

Under FECA, once OWCP has accepted a claim it has the burden of justifying termination or modification of compensation benefits.3 OWCP may not terminate compensation without establishing that the disability ceased or that it was no longer related to the employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper factual and medical background.5

3
V.C., 59 ECAB 490 (2008); Charles E. Minniss, 40 ECAB 708, 716 (1989).
4
Id.
5
See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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 ANALYSIS

The Board finds that OWCP properly terminated appellant’s wage-loss compensation and medical benefits.

On December 9, 2015 OWCP referred appellant for a second opinion examination with Dr. Smith, a Board-certified orthopedist.

In a January 8, 2016 report, Dr. Smith examined appellant and provided findings. They included that the ankle revealed no deformity or swelling, that there were no dystrophic signs in the leg or foot, and that there was active motion in the first, second, and third toes. Dr. Smith found that appellant did not actively move her fourth and fifth toes. He found satisfactory and functional range of motion of the ankle and subtalar joints without any instability or crepitation. Dr. Smith determined that there was no atrophy in the calf musculature and that motor strength in the muscles, foot, and ankle was satisfactory. He also found no tendon problems, a normal arch, and determined that neurovascular status was intact. Dr. Smith opined that appellant had fully recovered from the work injury of a left ankle sprain related to the January 14, 2011 incident. He advised that there were no objective findings in his examination with respect to the accepted left ankle condition. Dr. Smith opined that the accepted conditions had resolved without residuals. He determined that there were no ongoing physical limitations, restrictions, and/or disability related to the claim. Dr. Smith opined that appellant was at maximum medical improvement. He explained that there was nothing objective that would indicate that appellant required ongoing or future testing, medical care and or physical therapy or reflexology or any other type of treatment related to the claim.

The Board finds that Dr. Smith’s opinion is well rationalized and represents the weight of the medical evidence regarding appellant’s accepted conditions. The Board also notes that there are no current reports from a treating physician to contradict these findings. Because the evidence of record establishes that appellant no longer has residuals or disability related to her accepted employment conditions. OWCP properly terminated entitlement to wage-loss compensation and medical benefits effective February 22, 2016. Accordingly, OWCP’s decision to terminate appellant’s compensation and medical benefits shall be affirmed.

CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective February 22, 2016.

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 ORDER

IT IS HEREBY ORDERED THAT the November 2, 2016 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 26, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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