United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 15-0239 

Issued: September 3, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On November 12, 2014 appellant, through counsel, filed a timely appeal from an 

August 5, 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

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate compensation for 

wage-loss and medical benefits effective December 15, 2013; and (2) whether appellant has met 

her burden of proof to establish continuing residuals or disability after the termination of his 

compensation benefits. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant continued to submit medical evidence after OWCP’s August 5, 2014 decision. 

However, the Board lacks jurisdiction to review new evidence for the first time on appeal. 
2

FACTUAL HISTORY 

On May 28, 2012 appellant, then a 50-year-old mail handler, filed a traumatic injury 

claim alleging that on May 27, 2012 he fractured his right knee when he tripped over a safety bar 

and fell down. His claim was accepted for right knee fracture. Appellant stopped work and 

received wage-loss compensation. 

Initial emergency room records diagnosed a closed patella fracture and also noted that 

appellant had a history of multiple sclerosis. Thereafter, appellant was treated by Dr. David 

Bundens, a Board-certified orthopedic surgeon. On May 29, 2012 Dr. Bundens reported the 

history of the work injury and advised that the right knee was swollen and tender over the 

patella. X-rays showed an undisplaced patella fracture. Dr. Bundens recommended a knee 

immobilizer for six weeks and indicated that appellant could not work. He continued to submit 

reports noting appellant’s status and indicating that x-rays showed the fracture was healing in a 

good position although he remained weak and unable to work. Appellant was also referred for 

physical therapy. Subsequent reports indicate that he sustained an unrelated fall on October 2, 

2012 which resulted in a nonwork-related fracture of his right foot. As of December 12, 2012, 

Dr. Bundens advised that an x-ray of the right knee revealed that the patella fracture appeared to 

be healing in good position and that there were some mild degenerative changes. 

In a May 23, 2013 report, Dr. Bundens advised that he began treating appellant in 

May 2012 for acute fracture of the patella after he tripped over a safety bar at work. He noted 

that initially appellant’s knee had tenderness and swelling over the patella and that he could not 

extend his knee secondary to pain. Dr. Bundens advised that appellant’s knee joint looked good 

and that his patella fracture had healed nicely. He noted that appellant’s on-going disability for 

work was caused by extreme weakness secondary to an underlying neurologic condition. 

Dr. Bundens opined that appellant was not capable of any sustained standing, walking, or manual 

labor. 

On August 15, 2013 OWCP referred appellant, together with the medical record and a 

statement of accepted facts, to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for a 

second opinion regarding appellant’s work-related condition. In an October 3, 2013 report, 

Dr. Askin advised that appellant fell on his right knee at work resulting in a fractured right 

patella. He noted that appellant fell at least four times following the work-related injury and that 

he currently complained of right knee pain and swelling. Dr. Askin reiterated that Dr. Bundens 

advised that appellant’s fracture had healed “quite nicely” and yet he still had disability due to 

extreme weakness secondary to an underlying neurologic condition. On physical examination, 

he advised that appellant’s right patella was not deformed and that he did not have any passive 

limitation of motion of the right knee as compared with the left. Dr. Askin also noted that he did 

not detect any effusion for either knee or any ligamentous laxity. He advised that appellant had 

profound weakness in both his lower and upper extremities. Dr. Askin opined that appellant’s 

accepted condition healed and that he did not suffer from any residuals of that condition. He 

further opined that there was no work-related disability and appellant’s accepted condition would 

not prevent him from returning to work. However, appellant’s underlying neurologic condition 

may preclude him from work. Dr. Askin noted that he was unable to diagnose appellant’s 

neurologic condition, but advised that it caused profound neuromuscular weakness of all four 

limbs. He opined that the neurologic condition was independent of the work injury. Dr. Askin 
3

noted that appellant’s tendency to fall and his incapacity for activity was related to his neurologic 

condition as opposed to the accepted work injury. In an accompanying August 30, 2013 work 

capacity evaluation, he advised that appellant had no work-related disability. 

By letter dated October 8, 2013, OWCP advised appellant that it proposed a termination 

of wage-loss compensation and medical benefits. It advised that the weight of the evidence was 

represented by Dr. Askin who found that there were no residuals of appellant’s accepted 

condition. 

By letter dated October 30, 2013, counsel disputed the proposed termination. He argued 

that Dr. Bundens did not find that appellant had recovered from his injury and that there was a 

conflict in the medical record requiring referral to a referee physician. 

By decision dated December 12, 2013, OWCP terminated appellant’s wage-loss and 

medical benefits effective December 15, 2013. It found that the weight of medical opinion was 

represented by Dr. Askin. 

By letter dated December 17, 2013, appellant through counsel, requested an oral 

telephone hearing. During the May 22, 2014 hearing, he advised that he worked for the 

employing establishment since 1996. Appellant noted that he currently had a neurologic 

condition that caused the nerves in his spine to deteriorate. He further noted that he did not 

know the name of his condition, but advised that it began four years prior. Appellant advised 

that his neurologic problems worsened following his work injury and noted that currently he 

could only stand for 15 minutes and that he had difficulty getting in and out of chairs. During 

the hearing, counsel argued that Dr. Askin should not have been the weight of the evidence. He 

argued that on examination Dr. Askin only looked at the right knee’s passive range of motion as 

compared to the left knee without noting its active range of motion or taking into account that 

appellant also had a preexisting left knee injury. Counsel also argued that Dr. Askin contradicted 

himself with regard to his opinion on appellant’s ability to return to work. 

Following the hearing, appellant submitted multiple reports from Dr. Laura Ross, a 

Board-certified osteopath specializing in orthopedic surgery. In a February 21, 2014 report, 

Dr. Ross advised that he had a fall at work that resulted in a fractured right kneecap. She noted 

that the fracture healed well, but appellant still complained of right knee pain. On physical 

examination Dr. Ross found right knee tenderness and palpation along the joint line, no gross 

instability of the knee, and pain with pressure of the patella. She also advised that appellant had 

a history of Charcot Marie Tooth disease. In a March 7, 2014 report, Dr. Ross advised that he 

had mild crepitus with range of motion of the right knee and tenderness along the joint line. She 

assessed internal derangement of the right knee consisting of chondromalacia patella, tibial 

plateau, and distal femur contusions. In an April 18, 2014 report, Dr. Ross evaluated appellant’s 

left knee and advised that he also complained of right knee pain. In a May 30, 2014 report, she 

assessed degenerative joint disease of the right knee and tenderness along the joint line. Physical 

therapy reports were also received. 

By decision dated August 5, 2014, an OWCP hearing representative affirmed the 

December 12, 2013 decision terminating appellant’s medical and wage-loss benefits. 
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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. After it has determined that an employee 

has disability causally related to his or her federal employment, it may not terminate 

compensation without establishing that the disability ceased or that it was no longer related to the 

employment.3 The right to medical benefits for an accepted condition is not limited to the period 

of entitlement to compensation for disability. 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.4

 

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s traumatic injury claim for a fractured right patella. 

Appellant received wage-loss compensation and medical benefits based on the accepted 

conditions. In his May 23, 2013 report, Dr. Bundens advised that appellant’s right patella 

fracture had healed and that his on-going disability was attributable to his underlying neurologic 

condition. OWCP then referred appellant to Dr. Askin for a second opinion regarding the status 

of appellant’s accepted condition. 

In his October 3, 2013 report, Dr. Askin set forth the history of appellant’s accepted right 

knee condition, reviewed the medical treatment records related to appellant’s conditions, and 

reviewed the statement of accepted facts. He opined that appellant’s fractured right patella 

healed and that he did not suffer from any residuals of that condition. Dr. Askin further opined 

that, although appellant’s accepted condition would not prevent him from returning to work, his 

preexisting neurologic condition may preclude work. He noted that he was unable to diagnose 

appellant’s neurologic condition, but advised that it caused profound neuromuscular weakness of 

all four limbs. Dr. Askin opined that the neurologic condition was independent of the work 

injury. He opined that appellant’s tendency to fall and incapacity for activity was related to his 

neurologic conditions as opposed to the accepted work injury. 

The Board finds that Dr. Askin represents the weight of the evidence. Dr. Askin’s report 

was based on a full and accurate history, a review of the medical records, and provided a 

rationalized medical opinion addressing the basis for his conclusion that appellant’s on-going 

disability was no longer related to the work-related accepted condition. 

On appeal counsel argues that Dr. Askin, as an orthopedic surgeon, was unable to 

adequately address whether the work incident aggravated appellant’s preexisting neurologic 

condition. The Board notes that OWCP only accepted an orthopedic condition, a fractured 

patella, and did not accept any neurological condition.5

 As explained, Dr. Askin examined 

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

4 Furman G. Peake, 41 ECAB 361 (1990). 

5 See Jaja K. Asaramo, supra note 3 (where an employee claims that, a condition not accepted or approved by 

OWCP was due to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury). 
5

appellant and clearly explained that the work-related orthopedic fracture had resolved without 

residuals. Based on the findings and reasoning stated above, the Board finds that counsel’s 

arguments are not substantiated. Dr. Askin found no basis on which to attribute any continuing 

condition or residuals to the accepted injury. The Board also finds that there was no conflict in 

the record between Dr. Bundens and Dr. Askin. At the time of Dr. Askin’s report, Dr. Bundens 

May 23, 2013 report opined that appellant’s accepted right patella fracture had healed and that 

on-going disability was attributable to an underlying neurologic condition. 

LEGAL PRECEDENT -- ISSUE 2 

It is well established that after termination or modification of benefits, clearly warranted 

on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. 

In order to prevail, appellant must establish by the weight of the reliable, probative, and 

substantial evidence that she had an employment-related disability or residuals which continued 

after termination of compensation benefits.6

 

ANALYSIS -- ISSUE 2 

OWCP accepted that appellant sustained a fractured right patella. On December 12, 2013 

it terminated his wage-loss and medical compensation benefits effective December 15, 2013 

finding that the accepted fractured right patella ceased without residuals or work limitations. 

The burden now shifts to appellant to demonstrate that he continued to have residuals or 

disability for work on and after December 15, 2015 due to the accepted injury.7 

After the termination of appellant’s compensation benefits, he submitted several reports 

from Dr. Ross. In her February 21, 2014 report, Dr. Ross advised that he had a fall at work that 

resulted in a fractured right kneecap. She advised that the fracture was healed, but appellant still 

complained of right knee pain. In her March 7, April 18, and May 30, 2014 reports, Dr. Ross 

advised him of the status of his condition. These reports are insufficient to create a conflict with 

or to overcome the weight of Dr. Askin’s report because they do not specifically address whether 

residuals of appellant’s accepted condition remain or whether he remained disabled from work 

due to residuals of the May 27, 2012 work injury. 

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. 

CONCLUSION 

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

compensation benefits and that he has failed to meet his burden of proof to establish any 

continuing disability or medical residuals on or after December 15, 2013. 

 6 See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992). 

7 Virginia Davis-Banks, id. 
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ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board