United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jersey City, NY, Employer 

__________________________________________ 

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Docket No. 15-0091 

Issued: August 10, 2015 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 15, 2014 appellant, through counsel, filed a timely appeal from an August 28, 

2014 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. 

ISSUES 

The issues are: (1) whether OWCP properly terminated appellant’s entitlement to 

compensation on September 17, 2012 as she no longer had residuals of an accepted left ankle 

contusion; and (2) whether appellant met her burden of proof to establish a left knee condition 

caused or aggravated by her May 8, 2012 employment injury. 

On appeal counsel asserts that the weight of the medical evidence rests with the opinion 

of appellant’s attending physician who found her left knee condition was caused or aggravated 

by the May 8, 2012 employment injury. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On May 8, 2012 appellant, then a 54-year-old mail handler, filed a traumatic injury claim 

alleging that she injured her left ankle that day when she tripped while unloading a trailer of 

mail. She stopped work and was seen at the Christ Hospital emergency room. A nurse 

practitioner indicated that appellant should stay off her ankle for two days and see her private 

physician. On May 15, 2012 Joshua Falto, a physician assistant, stated that appellant was under 

his care for a left ankle, left knee, and right hand injury after a fall at work on May 8, 2012. 

Appellant could not return to work until further evaluation. In a duty status report dated May 11, 

2012, Dr. David N. Feldman, a Board-certified orthopedic surgeon, diagnosed left ankle and 

knee sprains and advised that she could not work. In a May 16, 2012 attending physician’s 

report, he noted the history of injury and advised that appellant had previous left knee surgery. 

Dr. Feldman indicated that the left ankle and knee were negative for fracture, diagnosed sprains 

of the knee and ankle, and advised by checking a form box “yes” that the diagnosed conditions 

were caused by work activities. An ankle brace was provided. On June 5 and 14, 2012 Sharon 

Lee, a physician assistant, advised that appellant should remain off work until July 1, 2012. 

By letter dated June 22, 2012, OWCP informed appellant that when her claim was 

received it appeared to be a minor injury and was administratively handled but that the claim was 

being reopened and would be formally adjudicated. It noted that a contusion of the left ankle 

was accepted as compensable but that injuries to the left knee and right hand were not. 

Appellant was informed of the evidence needed to support her request to expand the accepted 

conditions. She received continuation of pay for the period May 9 to June 22, 2012 and 

thereafter submitted claims for compensation. 

A May 8, 2012 triage report from the Christ Hospital emergency department, completed 

by a registered nurse, indicated that appellant’s chief complaint was her right hand, left knee, and 

top of her left foot. A hospital physical examination form, bearing an illegible signature, 

reported appellant with right hand, left foot and knee pain following an injury and that appellant 

was medicated. Right hand and left ankle x-rays were normal. Dr. Ronald Bookbinder, who 

practices emergency medicine, noted appellant’s complaints of right hand and left foot pain. 

Physical examination findings included left foot tenderness. Dr. Bookbinder reviewed the x-rays 

and diagnosed hand contusion and foot sprain. The foot was wrapped with an ace bandage and 

appellant was discharged on medication, to follow-up with her private physician. 

In a May 11, 2012 attending physician’s report, Dr. Feldman noted the history of injury, 

stating that appellant caught her ankle when she fell. Appellant had an ankle air cast and 

prescribed medication. On June 1, 2012 Dr. Feldman indicated that she was seen in follow-up 

for left knee and ankle pain. He advised that a May 11, 2011 left knee magnetic resonance 

imaging (MRI) scan showed extensive marrow abnormality involving the medial greater than 

lateral femoral condyles with a differential diagnosis including osteonecrosis, infection, 

inflammation, or neoplasm thought to be less likely; possible distal femoral intraosseous lipoma; 

grade 1 sprain of the medial collateral ligament; grade 4 chondromalacia patellae, lateral patellar 

facet; moderate suprapatellar effusion; and grade 2 signal posterior horn medial meniscus. 

Dr. Feldman noted that appellant had a previous left knee arthroscopy on June 3, 2011, provided 

findings, and advised that right wrist, hand, and left ankle sprains had resolved. He diagnosed 

chondromalacia patella of the knee and effusion and recommended a knee sleeve and cane. 
3

Dr. Feldman indicated that appellant could return to modified duty. In treatment notes dated 

June 5 to July 13, 2012, he noted that she had continued moderate left knee pain and provided 

examination findings. Dr. Feldman further noted that appellant had a history of cardiac valve 

replacement and back pain. Diagnoses included osteoarthritis, chondromalacia patella, effusion, 

and pain of the left leg. Dr. Feldman anticipated that appellant would eventually need a total 

knee replacement for pain and recommended a new MRI scan study. A return to work was 

pending authorization of the MRI scan to assess the extent of trauma. 

A July 30, 2012 left knee MRI scan study showed moderate joint effusion and extensive 

marrow and cortical changes throughout the distal femur. It was noted that Paget’s disease 

and/or a treated cartilage lesion could give this appearance. Also shown were degeneration and 

fraying of the posterior horn and body of the medial meniscus with no discrete meniscal tear and 

moderate joint effusion. A computerized tomography (CT) scan of the knee and distal femur 

was recommended. On August 9, 2012 Dr. Feldman reviewed the MRI scan study and noted left 

knee examination findings of crepitation and joint line tenderness with no laxity. He 

recommended a CT scan and medical clearance for total knee replacement surgery. Dr. Feldman 

continued to advise that appellant could not return to work. 

In July 2012 OWCP referred appellant to Dr. Jeffrey F. Lakin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In an August 6, 2012 report, Dr. Lakin 

noted the history of injury, his review of the medical record and statement of accepted facts, and 

appellant’s complaint of left knee pain. He found that she had previous left knee arthroscopy but 

that she could not remember how she injured her knee at that time. Examination of the left knee 

demonstrated minimal patellofemoral crepitus and patellofemoral grind with no joint line 

tenderness and well-healed arthroscopic portals. Range of motion demonstrated less than three 

degrees of extension to 110 degrees of flexion. There was no varus or valgus instability, and 

motor strength of quadriceps and hamstrings was 5/5. In answer to specific OWCP questions, 

Dr. Lakin advised that appellant’s left ankle contusion had completely resolved and, regarding 

that injury, she could return to full duty without restriction. In an attached work capacity 

evaluation, he advised that she had reached maximum medical improvement and could return to 

her regular job. 

In undated correspondence received by OWCP on August 20, 2012, appellant requested 

that her accepted conditions be expanded to include her left knee, stating that she injured it on 

May 8, 2012. 

An MRI scan of the left knee on August 21, 2012 demonstrated a mild sprain of the 

anterior cruciate ligament; a grade 2 sprain of the medial collateral ligament; that the body 

segment and posterior horn of the medial meniscus appeared diminutive with marked 

heterogeneous intrasubstance signal possibly related to previous arthroscopic surgery or meniscal 

tear, grade III-IV chondromalacia over the median ridge as well as the lateral aspect of the 

medial patellar facet without significant subchondral marrow change grade III-IV 

chondromalacia over the middle trochlear groove, the appearance of significant cortical 

thickening of the distal femoral diaphysis which could be seen in Paget’s disease, and low signal 

material with associated mild surrounding hyperintense signal within the distal femoral 

metadiaphysis that likely reflected sequelae of previous surgery with reported filling of the area 

of avascular necrosis with calcium phosphate cement. An August 21, 2012 CT scan of the left 
4

leg showed similar results. The left ankle joint was intact. Limited CT evaluation demonstrated 

intact soft tissues and musculature. 

In a supplemental report dated August 29, 2012, Dr. Lakin noted appellant’s history of 

previous left knee surgery in May 2011. His left knee examination demonstrated minimal 

patellar femoral crepitus and no joint line tenderness, well-healed arthroscopic portals, no 

instability, and motor strength of 5/5. Dr. Lakin concluded that there was absolutely no 

relationship between the current left knee findings and the May 8, 2012 employment injury. 

Rather, he opined that the knee findings were related to a preexisting condition. 

On August 29, 2012 Dr. Feldman reported that he first examined appellant on May 11, 

2012 when she reported an injury to her left knee, left ankle, and left hand at work on 

May 8, 2012. He stated that each subsequent visit was related to her complaints of ankle and 

knee pain and that, while her ankle condition had resolved, her left knee pain was getting worse 

and was clearly related to her fall at work. 

On September 7, 2012 OWCP denied appellant’s claim for disability compensation for 

the period June 23 to September 7, 2012 because the medical evidence did not establish that she 

was totally disabled due to conditions caused by the May 8, 2012 employment injury. On 

September 11, 2012 appellant, through counsel, requested a hearing. 

In a September 17, 2012 decision, OWCP found that appellant no longer had disability or 

residuals due to the accepted left ankle condition and terminated her entitlement to compensation 

benefits.2

 It also noted that her left knee condition was preexisting. Counsel also requested a 

hearing from the September 17, 2012 decision and asked that both matters be heard at the same 

time. 

Dr. Feldman continued to submit treatment notes describing appellant’s left knee 

condition. In a September 26, 2012 report, he indicated that she had been under his care since 

May 11, 2012 for a May 8, 2012 employment injury to her left knee, left ankle, and right hand. 

Dr. Feldman stated that appellant’s knee pain was the most annoying with swelling and increased 

pain with weight bearing, that she was limited to walking two to three blocks, and that she had 

difficulty with stairs. He reported that on June 30 2011 she had left knee arthroscopy. 

Appellant’s last visit regarding that procedure was October 31, 2011 and that she continued to do 

well with only occasional pain until the May 8, 2012 injury. Dr. Feldman noted physical 

findings of decreased knee range of motion with crepitation, tenderness, and effusion. He 

advised that appellant’s pain and disability had progressed, that she was unable to walk without a 

cane, could not stand for long periods, was on narcotic medication, and now needed total knee 

replacement surgery. Dr. Feldman described her job duties and indicated that, due to pain, she 

was disabled from the mail handler position because she was unable to bend, stoop, kneel, climb, 

lift heavy packages, twist or pivot on the knee. He concluded that the May 8, 2012 fall 

exacerbated appellant’s underlying condition, increasing her pain, and disability. 

At the hearing, held on December 12, 2012, appellant testified that she was out of work 

from June to October 2011 for nonwork-related left knee surgery performed by Dr. Feldman’s 

 2

 The record reflects that appellant received no wage-loss compensation under this claim. 
5

associate. She described her job duties, that she injured her left ankle, left knee, and right hand 

on May 8, 2012 and described her treatment at Christ Hospital. Appellant indicated that she then 

came under the care of Dr. Feldman who recommended a total knee replacement. Counsel 

maintained that the May 8, 2012 employment injury caused a permanent aggravation of 

appellant’s left knee arthritis and that Dr. Feldman’s opinion was sufficient to establish 

entitlement. 

On February 20, 2013 an OWCP hearing representative found that appellant’s left ankle 

condition had resolved and that she did not sustain a left knee injury on May 8, 2012. He 

affirmed OWCP’s findings. 

On October 7, 2013 counsel requested reconsideration of the February 20, 2013 decision 

and prior decisions. Dr. Feldman continued to submit treatment notes and reports describing 

appellant’s condition and advising that she could not work. On May 23, 2013 he reiterated his 

request for authorization for left total knee replacement surgery. A June 24, 2013 MRI scan 

study of the left ankle demonstrated a chronic mild type 2 tear of the distal posterior tibial tendon 

with no evidence of talonavicular fault or pes planus. On March 20, 2014 Dr. Feldman 

described appellant’s care since May 11, 2012. He found that her left knee arthritic condition 

progressively worsened and that on February 4, 2014 she underwent left total knee replacement 

surgery. Dr. Feldman described appellant’s postoperative care, noting that she still had moderate 

discomfort. He concluded that the May 8, 2012 employment injury exacerbated her underlying 

left knee arthritic condition and accelerated her symptomatology to the point that she required a 

total knee replacement, noting that she had previously done well after a knee arthroscopy the 

year previously and was able to do her job as a mail handler until the May 8, 2012 injury. 

In a merit decision dated August 28, 2014, OWCP found that the weight of the medical 

evidence rested with the opinion of Dr. Lakin regarding whether appellant’s left knee condition 

was related to the May 8, 2012 employment injury and denied modification of the February 20, 

2013 decision. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits. It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.3

 

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.4 

ANALYSIS -- ISSUE 1 

On May 8, 2012 appellant sustained a left ankle contusion when she tripped while 

unloading a trailer of mail. The Board finds that OWCP properly terminated appellant’s 

entitlement to compensation benefits on September 17, 2012 for the accepted left ankle 

 3 Jaja K. Asaramo, 55 ECAB 200 (2004). 

4 Id.
6

contusion because the medical evidence established that the accepted condition had resolved. On 

August 6, 2012 Dr. Lakin, an OWCP referral physician, advised that appellant’s left ankle 

contusion had completely resolved and she could return to full duty without restriction regarding 

that injury. On August 29, 2012 Dr. Feldman, an attending orthopedic surgeon, also advised that 

appellant’s ankle condition had resolved. There is no additional contemporaneous medical 

evidence that addresses appellant’s ankle condition. 

The Board therefore concludes that OWCP properly terminated her entitlement to 

wage-loss and medical benefits for this condition on September 17, 2012.5

 

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 regarding this issue. 

LEGAL PRECEDENT -- ISSUE 2 

 Causal relationship is a medical issue, and the medical evidence required to establish a 

causal relationship is rationalized medical evidence.6

 The opinion of the physician must be 

based on a complete factual and medical background of the claimant, must be one of reasonable 

medical certainty, and must be supported by medical rationale explaining the nature of the 

relationship between the diagnosed condition and the specific employment factors identified by 

the employee.7 Neither the mere fact that a disease or condition manifests itself during a period 

of employment nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.8

 Section 8123(a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.9 The implementing regulations 

state that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination, and 

 5

 The Board notes that a pretermination notice was not issued in this case. However, OWCP procedures provide 

that a notice is not required if the treating physician indicates further medical treatment is not necessary or treatment 

has ended. If the claimant’s treating physician has indicated that medical treatment for the work-related condition 

has ended, or states that further medical treatment is not necessary for the work-related condition, medical benefits 

may be terminated without providing the claimant prior notice, but if the claimant is in the receipt of compensation 

benefits, a pretermination notice is needed to terminate such benefits. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Disallowances, Chapter 2.1400.4.1(8) (February 2013). In this case, as noted above, on August 29, 2012 

Dr. Feldman, an attending orthopedic surgeon, advised that appellant’s ankle condition, the accepted condition in 

this case, had resolved. As appellant had never received wage-loss compensation under this claim, a pretermination 

notice was not required. 

6 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

7 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

8 Dennis M. Mascarenas, 49 ECAB 215 (1997). 

9

 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 
7

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.10 

ANALYSIS -- ISSUE 2 

The Board finds this case is not in posture for decision as to whether appellant’s 

diagnosed left knee condition was caused or aggravated by the May 8, 2012 employment injury. 

In its September 17, 2012, February 20, 2013, and August 28, 2014 merit decisions, 

OWCP found that appellant had not established a left knee condition causally related to the 

May 8, 2012 incident, noting that the weight of the medical opinion evidence rested with 

Dr. Lakin, an OWCP referral physician. The Board, however, finds that a conflict exists in the 

medical evidence between Dr. Lakin and appellant’s attending orthopedic surgeon, Dr. Feldman, 

with respect to whether the fall at work on May 8, 2012 caused or aggravated a preexisting left 

knee condition.11

Dr. Feldman first saw appellant on May 11, 2012, three days after the employment injury. 

He furnished treatment notes and reports from that day through March 20, 2014, following total 

knee replacement surgery. Dr. Feldman reported a history that appellant previously had 

arthroscopic surgery on her left knee on June 3, 2011 but that she was able to return to mail 

handler duties in October 2011 and did well until the fall on May 8, 2012. On August 9, 2012 he 

noted his review of a July 30, 2012 MRI scan and noted physical examination findings of left 

knee crepitation and joint line tenderness. An additional MRI scan was completed on 

August 21, 2012. In an August 29, 2012 report, Dr. Feldman noted that appellant’s left knee 

condition progressed following her first visit on May 11, 2012, and on September 26, 2012 

indicated that she had increased knee pain with weight bearing that limited her activities and that 

she had physical findings of decreased knee range of motion, crepitation, tenderness, and 

effusion. He advised that she was disabled from the mail handler position because she could not 

bend, stoop, kneel, climb, lift heavy packages, twist or pivot on the knee. Dr. Feldman 

concluded that the May 8, 2012 fall exacerbated appellant’s underlying condition to the degree 

that she was disabled. On March 20, 2014 he reiterated that the May 8, 2012 employment injury 

exacerbated an underlying arthritic condition and accelerated her symptomatology to the point 

that she required total knee replacement, which was done on February 4, 2014. 

Dr. Lakin, OWCP referral physician who had reviewed the medical record and statement 

of accepted facts, examined appellant on August 6, 2012. He indicated that she had previous left 

knee arthroscopic surgery, but that she could not remember how she injured her knee at that 

time. Dr. Lakin listed examination findings and concluded that the left ankle contusion had 

resolved. In an August 29, 2012 supplemental report, he noted that appellant had left knee 

surgery in May 2011. Dr. Lakin opined that there was absolutely no relationship between the 

current left knee findings and the May 8, 2012 employment injury. Rather, he considered the 

knee findings were related to a preexisting condition. 

 10 20 C.F.R. § 10.321. 

11 F.B., Docket No. 13-2066 (issued March 11, 2014). 
8

The Board finds that the opinion of Dr. Feldman is of equal weight to the opinion of 

Dr. Lakin. Dr. Feldman and Dr. Lakin reached opposite conclusions regarding whether 

appellant’s diagnosed left knee condition was caused or aggravated by the May 8, 2012 

employment injury. Dr. Lakin opined that appellant’s condition was preexisting and not related 

to the employment injury. Dr. Feldman opined that her preexisting condition was permanently 

aggravated by the May 8, 2012 fall. When there is a conflict of opinion between the claimant’s 

attending physician and the physician performing an examination for the government, OWCP 

shall appoint a third physician to resolve the disagreement.12 Where a person has a preexisting 

condition that is not disabling, but which becomes disabling because of aggravation causally 

related to employment, then regardless of the degree of such aggravation, the resulting disability 

is compensable.13

Upon return of the case record, OWCP should refer appellant, the case record, a 

statement of accepted facts, and appropriate questions, to a Board-certified specialist to 

determine if appellant’s left knee condition is causally related to the May 8, 2012 employment 

injury, either directly or through aggravation, precipitation, or acceleration. Following this and 

any other development deemed necessary, OWCP shall issue an appropriate decision on the 

merits of appellant’s claim. 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s entitlement to compensation 

on September 17, 2012 because she no longer had residuals of an accepted left ankle contusion, 

and that a conflict in medical opinion evidence exists regarding whether her left knee condition 

was caused of aggravated by a May 8, 2012 employment injury. 

 12 Supra note 8. 

13 A.M., Docket No. 14-320 (issued November 21, 2014). 
9

ORDER 

IT IS HEREBY ORDERED THAT the August 28, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part and the case is 

remanded to OWCP for proceedings consistent with this opinion of the Board. 

Issued: August 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board