United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Long Beach, CA, Employer 

__________________________________________ 

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Docket No. 15-54 

Issued: April 7, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 14, 2014 appellant filed a timely appeal from a September 3, 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.2

ISSUE 

The issue is whether OWCP met its burden of proof to justify termination of appellant’s 

compensation benefits for her accepted injury, effective March 20, 2014. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 The Board notes that appellant submitted new evidence with her appeal to the Board. However, the Board is 

precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20 

C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 

(2005); Rosemary A. Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued September 23, 2009). 
2

FACTUAL HISTORY 

On June 7, 2013 appellant, then a 54-year-old mail handler, filed an occupational disease 

claim asserting that her repetitive duties including pushing, pulling, twisting, turning, lifting, and 

unloading caused her to develop knee injuries. She first became aware of her condition and its 

relation to her work on February 13, 2005. On July 26, 2013 OWCP accepted appellant’s claim 

for a temporary aggravation of localized primary osteoarthritis of the bilateral lower legs. 

Appellant stopped work on June 25, 2013 and claimed wage-loss compensation beginning 

September 7, 2013. 

The record indicates that appellant was treated by Dr. Anthony G. Leung, a Boardcertified orthopedist, on November 18, 2010 and July 22, 2011 for moderate-to-severe 

degenerative joint disease. Dr. Leung administered synvisc injections to both knees. 

Appellant was treated by Dr. William C. Kim, a Board-certified orthopedist, from July 1, 

2008 to October 11, 2011, for advanced osteoarthritis of the bilateral knees. In reports dated 

April 2 to August 21, 2013, Dr. Kim diagnosed moderately severe osteoarthritis of both knees. 

He noted that appellant was a mail handler for 25 years and was responsible for loading and 

unloading trucks, lifting, carrying, and twisting. Dr. Kim opined that, although the osteoarthritis 

progressed on its own natural history, appellant’s course of employment over a period of years 

with prolonged standing and walking contributed to her pain and progression. In his first report 

of occupational injury and certificate of work disability dated August 20, 2013, Dr. Kim noted 

her complaints of stiffness and swelling and diagnosed bilateral degenerative joint disease of the 

knees. Dr. Kim opined that appellant was totally disabled for four weeks. In primary treating 

physician’s progress reports dated September 27 and October 15, 2013, he noted that appellant 

presented with bilateral knee pain and swelling. Dr. Kim diagnosed bilateral knee degenerative 

joint disease and recommended a total left knee replacement. He again noted that appellant was 

disabled for four weeks. On October 15, 2013 Dr. Kim noted that she required a knee 

replacement as conservative treatment had failed. He noted findings of 10 degrees of varus 

malalignment and limited knee range of motion. Dr. Kim noted that x-ray demonstrates severe 

osteoarthritis of the bilateral knees, medial compartment predominant. He diagnosed severe 

osteoarthritis of the bilateral knees. 

On October 24, 2013 OWCP referred appellant to Dr. G.B. Ha’Eri, a Board-certified 

orthopedist, to determine if the accepted conditions had resolved. In a November 6, 2013 report, 

Dr. Ha’Eri indicated that he reviewed the records provided and examined appellant. Appellant 

reported that she stopped work on June 26, 2013. She walked with a cane. Inspection of 

appellant’s knees revealed no joint swelling or effusions, mild degree of varus deformity 

bilaterally, limited range of motion with both knees, tenderness to palpation bilaterally, crepitus 

was present, and manipulation of the knees revealed no gross instability. Dr. Ha’Eri noted x-rays 

of both knees showed advanced osteoarthritis mainly affecting the medial compartment. He 

diagnosed bilateral knee advanced degenerative joint disease. Dr. Ha’Eri noted that the 

diagnosed condition directly related to appellant’s work exposure was a temporary aggravation 

of her preexisting naturally occurring degenerative joint disease of both knees and this condition 

ceased to exist when she stopped working on June 26, 2013. He indicated that the degenerative 

joint disease of her knees was naturally occurring, genetically determined, and aggravated by her 

obesity. Dr. Ha’Eri explained that the preexisting and naturally occurring bilateral knee 
3

degenerative joint disease was temporarily aggravated by appellant’s work duties and this 

aggravation ceased when she stopped working. He noted that her current symptoms and 

disability were due to the naturally occurring degenerative condition of her knees. With regard 

to Dr. Kim’s recommendation of a bilateral total knee replacement due to her work injury, 

Dr. Ha’Eri advised that the total bilateral arthroplasty was medically reasonable, but it was not 

due to the industrial injury. Dr. Ha’Eri reiterated that the temporary aggravation of appellant’s 

preexisting degenerative condition of her knees ceased on June 26, 2013 and appellant did not 

have residuals of the February 13, 2005 injury, and no longer required any medical treatment for 

her knees on an industrial basis. He noted that she had work restrictions due to the degenerative 

condition of her knees. In a work capacity evaluation dated November 6, 2013, Dr. Ha’Eri 

diagnosed localized primary osteoarthritis of the bilateral knees and noted that appellant reached 

maximum medical improvement and could return to work with restrictions related to the 

degenerative conditions of the knees. 

On December 2, 2013 OWCP requested that Dr. Kim review the second opinion report of 

Dr. Ha’Eri and indicate whether he agreed with Dr. Ha’Eri’s conclusions. 

Appellant submitted a November 12, 2013 report from Dr. Kim who diagnosed 

osteoarthritis of the bilateral knees. Dr. Kim noted that appellant had pain, a limp, restricted 

ability to walk and perform activities of daily living and required a total knee replacement. He 

opined that the cause of the knee osteoarthritis bilaterally was due to preexisting genetic 

predisposition, but her work aggravated her condition resulting in an early need for a total knee 

replacement. In a November 12, 2013 supplemental report, Dr. Kim provided an overview of 

appellant’s treatment from 2007 to 2013. He noted that standing bilateral knee x-rays from 

October 25, 2013 revealed severe osteoarthritis. Dr. Kim opined that the cause of appellant’s 

osteoarthritis bilaterally was due to preexisting genetic predisposition, but her work aggravated 

her condition resulting in a need for a knee replacement. He reviewed her job duties as a mail 

handler and indicated that she could not tolerate these duties. In a certificate of work disability, 

Dr. Kim diagnosed bilateral knee osteoarthritis and noted that appellant was totally disabled until 

December 11, 2013. In a report dated December 3, 2013, as requested he reviewed Dr. Ha’Eri’s 

November 6, 2013 report and opined that the underlying osteoarthritis preexisted her injury, but 

specifically opined that the injury resulted in significant aggravation of her preexisting condition 

with significant symptoms and disability. On December 3, 2013 Dr. Kim diagnosed bilateral 

knee osteoarthritis and noted that appellant was disabled until January 15, 2014. 

On February 10, 2014 OWCP proposed to terminate all benefits finding that Dr. Ha’Eri’s 

November 6, 2013 report established no continuing residuals of appellant’s work-related 

conditions. 

Appellant submitted reports from Dr. Kim dated October 15, November 12, and 

December 3, 2013, all previously of record. She submitted a September 17, 2013 report from 

him, noting that conservative treatment failed and she required a knee replacement due to 

advanced osteoarthritis. Appellant submitted progress reports dated February 18 and March 4, 

2014 from Dr. Kim who diagnosed bilateral knee osteoarthritis and noted that appellant could 

return to modified duty for six weeks. Dr. Kim noted that appellant required a total knee 

replacement. In a certificate of work disability dated February 18, 2014, he diagnosed bilateral 

knee osteoarthritis and noted that appellant could return to work limited duty on February 19, 
4

2014 with 50 percent of the work being sedentary duties. In a March 4, 2014 report, Dr. Kim 

opined that, although the osteoarthritis would have occurred absent appellant’s aggravating 

factors, he believed that both the obesity as well as repetitive weight bearing and stress on her 

knees as a postal employee aggravated her condition of osteoarthritis. 

In a decision dated March 25, 2014, OWCP terminated appellant’s compensation benefits 

effective March 20, 2014 finding that the medical evidence established that she had no 

continuing residuals of her accepted conditions. 

On April 8, 2014 appellant requested a review of the written record. She submitted 

reports from Dr. Leung dated July 7 and 22, 2011 and reports from Dr. Kim dated April 2, 2013 

to February 18, 2014, all previously of record. She submitted a new certificate of disability for 

work from Dr. Kim dated January 7, 2014 who diagnosed bilateral degenerative joint disease of 

the knees and noted that appellant could return to work on January 13, 2014 with restrictions and 

50 percent sedentary work for six weeks. Appellant submitted a primary treating physician’s 

progress report from Dr. Kim dated April 8, 2014 which noted her complaints of bilateral knee 

pain. Dr. Kim diagnosed bilateral knee osteoarthritis and noted that appellant could return to 

modified duty on April 15, 2014 subject to restrictions. Appellant also submitted physical 

therapy reports. 

In a decision dated September 3, 2014, OWCP’s Branch of Hearings and Review 

affirmed the decision dated March 25, 2014. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation 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 the employment.4

 The 

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

disability. To terminate authorization for medical treatment, OWCP must establish that a 

claimant no longer has residuals of an employment-related condition, which requires further 

medical treatment.5

Under FECA, when employment factors cause an aggravation of an underlying condition, 

the employee is entitled to compensation for the periods of disability related to the aggravation. 

When the aggravation is temporary and leaves no permanent residuals, compensation is not 

payable for periods after the aggravation has ceased, even if the employee is medically 

disqualified to continue employment because of the effect work factors may have on the 

underlying condition.6

 

 3 Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000). 

4 Mary A. Lowe, 52 ECAB 223 (2001). 

5 Id.; Leonard M. Burger, 51 ECAB 369 (2000). 

6 Raymond W. Behrens, 50 ECAB 221 (1999). 
5

ANALYSIS 

OWCP accepted appellant’s claim for temporary aggravation of localized primary 

osteoarthritis of the bilateral lower legs. Appellant stopped work on June 25, 2013 and claimed 

wage loss beginning September 7, 2013. OWCP terminated her compensation effective 

March 20, 2014 based on Dr. Ha’Eri’s opinion. The Board finds, however, that there is an 

unresolved conflict in medical opinion between Dr. Ha’Eri, OWCP referral physician, and 

Dr. Kim, appellant’s treating physician. 

In his report, Dr. Ha’Eri opined that the temporary aggravation of localized primary 

osteoarthritis of the bilateral lower legs ceased on June 26, 2013 and appellant did not have 

residuals of the February 13, 2005 injury and no longer required any medical treatment for her 

knees on an industrial basis. He disagreed with Dr. Kim that appellant required a bilateral total 

knee replacement due to her work injury and advised that the total bilateral arthroplasty was 

medically reasonable, but it was due to age-related degenerative joint disease of the knees, not 

the industrial injury. Dr. Ha’Eri opined that appellant had reached maximum medical 

improvement and could return to work full time with restrictions related to the degenerative 

condition of the knees. 

By contrast, reports from Dr. Kim dated November 12, 2013 to March 4, 2014 continued 

to support total disability due to appellant’s accepted condition of temporary aggravation 

osteoarthritis of the bilateral lower legs. He opined that the cause of appellant’s osteoarthritis 

bilaterally was preexisting genetic predisposition, but that her work aggravated her condition 

resulting in the need for a knee replacement. Dr. Kim reviewed appellant’s job duties as a mail 

handler and indicated that she could not tolerate these duties. He reviewed Dr. Ha’Eri’s 

November 6, 2013 report and opined that the underlying osteoarthritis preexisted her injury, but 

the injury resulted in significant aggravation of her preexisting condition with significant 

symptoms and continuing disability. Dr. Kim believed that appellant’s diagnosed obesity, as 

well as repetitive weight bearing and stress on her knees as a postal employee, aggravated her 

osteoarthritis. 

Section 8123 of FECA7

 provides that, if there is a disagreement between the physician 

making the examination for the United States and the employee’s physician, OWCP shall 

appoint a third physician who shall make an examination.8

 The Board finds that, because OWCP 

relied on Dr. Ha’Eri’s opinion to terminate appellant’s compensation without having resolved the 

existing conflict,9 OWCP has failed to meet its burden of proof in terminating compensation 

benefits. 

 7

 5 U.S.C. §§ 8101-8193. 

8 Id. at § 8123(a); Shirley L. Steib, 46 ECAB 39 (1994). 

9 See Craig M. Crenshaw, Jr., 40 ECAB 919, 923 (1989) (finding that OWCP failed to meet its burden of proof 

because a conflict in the medical evidence was unresolved). 
6

CONCLUSION 

The Board finds that OWCP has not met its burden of proof to terminate benefits, 

effective March 20, 2014. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 3, 2014 is reversed. 

Issued: April 7, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board