United States Department of Labor 

Employees’ Compensation Appeals Board 

H.W., Appellant 

and 

VETERANS HEALTH ADMINISTRATION, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Philadelphia, PA, Employer 

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Docket No. 14-1319 

Issued: February 3, 2015 

Appearance: Case Submitted on the Record 

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 19, 2014 appellant filed a timely appeal from the March 31, 2014 merit decision 

of the Office of Workers’ Compensation Programs (OWCP), which terminated her compensation 

benefits. 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. 

ISSUE 

The issue on appeal is whether OWCP properly terminated appellant’s compensation and 

medical benefits effective April 6, 2014. 

FACTUAL HISTORY 

On May 27, 2011 appellant then a 53-year-old program assistant filed a traumatic injury 

claim alleging that, on May 23, 2011, she “slammed” into a cabinet and sustained an injury to 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

her right knee in the performance of duty. She stopped work on the date of injury. On 

August 29, 2011 OWCP accepted the claim for contusion of the right knee.2 

On April 16, 2012 appellant requested that OWCP accept a left shoulder consequential 

injury. In an April 6, 2012 report, Dr. Randall N. Smith, a Board-certified orthopedic surgeon, 

and treating physician, noted that he saw her for the residuals of a May 23, 2011 work injury 

involving the right knee, which remained painful. He explained that appellant was using a cane 

to protect the knee and developed pain in the left shoulder. Furthermore, appellant was using the 

cane with the left arm and that was now a significant problem as well. Dr. Smith also reviewed 

her history and advised that she was still having problems with her left knee from another 

incident. He opined that, as a direct result of favoring the right knee and protecting the right 

knee with a cane, the left shoulder was deteriorating and he believed that there was “a direct 

relationship to the use of the cane putting the weight on the left shoulder and the rotator cuff 

tendinopathy which” was seen in a magnetic resonance imaging (MRI) scan of the left shoulder. 

Dr. Smith indicated that appellant was not working and recommended ergonomic evaluation of 

her work site to ensure that the employing establishment lessened the force on any of her injured 

areas. He stated that he was pessimistic about her prognosis. 

On June 19, 2012 OWCP referred appellant for a second opinion, along with a statement 

of accepted facts, a set of questions and the medical record to Dr. Robert Allan Smith, a Boardcertified orthopedic surgeon, to determine if the accepted May 23, 2011 injury caused any 

additional injuries to the right knee or other part of the body and also to address whether she 

continued to have residuals of the accepted right knee contusion. 

In a July 20, 2012 report, Dr. Robert Smith noted appellant’s history of injury and 

treatment. He examined her on that date and determined that the right knee revealed no evidence 

of any soft tissue abnormality such as scarring or residual abrasions, and there was no swelling in 

the knee. Dr. Smith found that active range of motion of the knee was satisfactory with full 

extension to 100 degrees of flexion. The McMurray sign was negative and there was no finding 

of any internal derangement about the knee. Dr. Smith found no muscle atrophy and determined 

that motor strength was satisfactory. Additional findings included that the knee was stable with 

intact ligamentous structures and the patellofemoral joint was normal. Dr. Smith determined that 

the only accepted condition with regard to appellant’s right knee related to the May 23, 2011 

work incident was a contusion. He advised that her complaints about other parts of her body 

were unsubstantiated and unrelated to the work injury. Dr. Smith noted that appellant had no 

reason for altered gait and was not using any assistive device for ambulation. He opined that 

there was no evidence that she continued to suffer from residuals of her right knee contusion and 

there was no discernible ongoing injury. Dr. Smith also indicated that appellant did not require 

any additional treatment. 

                                                             2

 The record reflects that appellant has filed other claims with OWCP. These include claim number xxxxxx904 

accepted for a March 30, 2011 contusion of the left knee; claim number xxxxxx757 accepted for a July 26, 1993 

lumbosacral sprain; claim number xxxxxx015 accepted for a June 26, 1997 left knee contusion; and claim number 

xxxxxx105 accepted for a July 14, 2002 closed dislocations of the fifth and sixth cervical vertebra, and closed 

dislocation of the thoracic vertebra. These other claims are not presently before the Board. 
3

In an August 10, 2012 report, Dr. Randall Smith, the treating physician, noted that he had 

reviewed Dr. Robert Smith’s report and did not agree with him. He opined that appellant could 

not return to work. Dr. Randall Smith explained that it started with the knee injury and favoring 

the knee, which caused her alignment to get out of position. Furthermore, appellant had chronic 

pain in the neck and back, which could occur with sitting or lying down for short periods of time, 

which prevented her from returning to her full-duty previous job. Dr. Smith indicated that she 

had not recovered from her May 23, 2011 condition. He indicated that appellant’s objective 

findings included: popping in the knee, swelling of the knee, painful range of motion of the knee 

along with cervical/lumbar spasms, tenderness, postural scoliosis, and painful range of motion. 

Dr. Smith opined that he did not anticipate appellant’s return to the workforce. 

In a June 7, 2013 report, Dr. Randall Smith diagnosed: contusion, sprain, internal 

derangement, and chondromalacia. He advised that, due to her altered gait, appellant was 

developing pain throughout the right thigh, hip, and entire right leg making it difficult for her to 

stand, walk, and sit. Dr. Smith noted that an MRI scan of the right knee, revealed 

chondromalacia. He indicated that objective findings included swelling of the right knee. 

Dr. Smith explained that the injury caused a gait dysfunction leading to progressive deterioration 

of appellant’s injury. Regarding work, he indicated that she could not stand, sit, or walk for any 

distance and opined that it was not reasonable for her to return to the workforce. Furthermore, 

appellant had reached maximum medical improvement with a guarded prognosis and would be 

unable to return to work without a surgery or a knee replacement. A June 3, 2013 right knee 

MRI scan, from Dr. Irene B. Darocha, a Board-certified diagnostic radiologist, showed 

chondromalacia of the patella. 

On September 26, 2013 OWCP referred appellant along with a statement of accepted 

facts, and the medical record to Dr. Menachem Meller, a Board-certified orthopedic surgeon for 

an impartial medical evaluation to resolve the conflict in opinion between Dr. Randall Smith, the 

treating physician, who advised that her right knee condition remained symptomatic and would 

not improve without surgery, and the second opinion physician, Dr. Robert Smith, who opined 

that her right knee condition had resolved and that she could perform her usual job duties and did 

not require further treatment for her right knee.3

 

In an October 14, 2013 report, Dr. Meller noted appellant’s history of injury and 

treatment and examined her on October 11, 2013. In reviewing the record, he noted June 19, 

2011 and June 22, 2012 right knee MRI scan reports. Dr. Meller that signal changes of the 

medial femoral condyle noted on the June 19, 2011 report had resolved by the June 22, 2012 

report. On examination, appellant had evidence of behavioral cofounders, with slow deliberate 

movements, flat guarded affect, and no visible impairment. Her gait was normal and she walked 

with one and one-half inch heels which she wore because she did not want to get her feet wet in 

the rain. Dr. Meller conducted range of motion testing and determined that appellant had limited 

movement. He presented findings which included approximately 60 degrees of flexion and -20 

degrees of extension when sitting over the side of the table with the knee flexed 120 degrees with 

a soft endpoint. Appellant had normal stability, normal alignment, no crepitus on motion, no 

                                                             3

 The record contains a September 26, 2013 ME023 appointment schedule notification, indicating Dr. Meller’s 

selection and also indicating that no other physicians were bypassed. 
4

meniscal signs, no popliteal fullness, no hamstring or gastrocnemius discomfort, no bruises, 

abrasions or ecchymosis, and no cutaneous lesions, including any sites of impact from the 

cabinet. 

Dr. Meller advised that appellant had complaints of aches and pains in her neck, 

shoulders, upper back, lower back the right leg, and both knees. He advised that the MRI scan of 

the right knee one month following the injury demonstrated a bone bruise or contusion. 

Dr. Meller stated that a subsequent right knee MRI scan showed that the prior findings had 

healed or disappeared. He explained that appellant also had grade 3 patellofemoral retropatellar 

chondromalacia, which was another term for arthritis of the right kneecap. Dr. Meller opined 

that this was normal for her age and had no relationship to the original injury. He indicated that 

should appellant choose to have knee surgery it would not be related to her work activities or 

work injury of May 23, 2013. Dr. Meller opined that appellant “has no objective structural 

lesions relating to work preventing her from carrying out her work duties. [Appellant] does 

however have evidence of work intolerance and behavioral confounders unrelated to work 

injuries.” He observed that, while out of work, she developed “diffuse left knee pain” that she 

attributed to favoring the right knee but he noted insufficient findings to explain the basis for the 

severity of left knee complaints. Instead, Dr. Meller opined that the right knee complaints were 

also due to aging wear and tear. He indicated that appellant was capable of returning to her 

preinjury occupation without any restrictions and no further treatment. In an accompanying 

October 16, 2013, work capacity evaluation, he advised that she could perform her usual job. 

On February 26, 2014 OWCP proposed to terminate appellant’s medical and wage-loss 

compensation based on the report of Dr. Meller. Appellant was given 30 days to submit 

additional evidence or argument. 

In a March 13, 2014 letter, appellant noted that the physicians selected by OWCP were 

paid in excess of $800.00 for less than 15 minutes of work. She indicated that she had a basic 

understanding of FECA and noted that most of the people did not understand the concept of the 

“help.” Furthermore, appellant indicated that she accepted “the proposed termination of 

medical/wage[-]loss compensation at this time for right now.” She noted that she did not agree 

with the opinions of the second opinion and impartial medical examiners. In a letter dated 

March 14, 2014, appellant stated that she would appeal any decision to terminate her benefits. 

She noted that Dr. Meller was a colleague of her ex-fiancé, who worked as a psychotherapist. 

Appellant argued that Dr. Robert Smith was a second opinion physician for the left knee and 

OWCP misinformed Dr. Meller that Dr. Smith was a second opinion physician for the present 

claim. She asserted that she never saw Dr. Meller for her right knee. Appellant also indicated 

that his opinion was “preconceived.” She stated that she found it strange that Dr. Meller 

photographed both knees, but did not mention them in his report. Appellant indicated that she 

would forward photographs of her knees. 

In a July 22, 2013 report, Dr. Kai Syvertsen, a clinical psychologist, indicated that he saw 

appellant as part of a disability evaluation. Appellant related that she injured her knee at work 

and now had pain in both knees and that in 2012 she injured her shoulder using a cane because of 

the knee injuries. Dr. Syvertsen noted her treatment and examined her. He diagnosed major 

depressive disorder, recurrent severe without psychotic features, deferred, and knee, shoulder, 

and headache pain. Dr. Syvertsen indicated that appellant was unemployed and had no friends, 
5

and financial difficulties. He indicated that her inability to complete activities of daily living was 

“partially due [to] physical limitations and partially due to lack of motivation and increased 

discomfort in social settings.” In an August 9, 2013 report, Dr. Zhiping Mo, Board-certified in 

preventative medicine, indicated that appellant presented for a social security disability 

evaluation. He examined her and diagnosed chronic knee, leg, shoulder, and back pain. OWCP 

also received a July 19, 2013 intake assessment from Jenifer L. Erickson, a clinical counselor, 

who recommended psychotherapy and a neurological assessment. 

In a letter dated March 26, 2014, appellant indicated that OWCP failed to provide her 

with a list of three physicians when the conflict appointment was arranged. She requested a list 

of three physicians from which she could select a “creditable” referee that conformed to the 

standards regarding a conflict adopted by OWCP. Appellant indicated that she had researched 

Dr. Meller’s background and concluded that his report was not “creditable.” She argued that his 

report was not impartial as he did not consider all of the orthopedic evidence. Appellant asserted 

that Dr. Meller did not consider that both her knees were swollen at the time of the examination, 

despite taking photographs. She noted that he refused to mention them in his biased report. 

Appellant also indicated that Dr. Meller has a personal vendetta against Dr. Randall Smith, her 

attending physician. She provided photographs of her knees. 

In a March 31, 2014 decision, OWCP terminated appellant’s compensation benefits 

effective April 6, 2014. It found that the weight of medical evidence rested with the impartial 

medical examiner, Dr. Meller. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.4 Having determined that an employee has a 

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

compensation without establishing either that the disability has ceased or that it is no longer 

related to the employment.5 

Furthermore, FECA provides that, if there is disagreement between the physician making 

the examination for OWCP and the employee’s physician, OWCP shall appoint a third physician 

who shall make an examination.6

 In cases where OWCP has referred appellant to an impartial 

medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.7

                                                             4 Curtis Hall, 45 ECAB 316 (1994). 

5 Jason C. Armstrong, 40 ECAB 907 (1989). 

6

 5 U.S.C. § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994). 

7 Gary R. Sieber, 46 ECAB 215, 225 (1994). 
6

A claimant who asks to participate in the selection of a referee physician based on an 

objection to the physician selected, must provide reasons for the request to participate.8 

Examples of circumstances under which a claimant may participate in the selection of a referee 

are document bias or unprofessional conduct by the selected physician.9

 

ANALYSIS 

OWCP accepted that appellant sustained a contusion of the right knee on May 23, 2011. 

On September 26, 2013 it determined that a conflict of medical opinion existed between 

Dr. Randall Smith, the treating physician, and the second opinion physician, Dr. Robert Smith.10 

Therefore, OWCP properly referred appellant to Dr. Meller, a Board-certified orthopedic 

surgeon, for an impartial medical examination to resolve the conflict. 

In his October 14, 2013 report, Dr. Meller noted appellant’s history, reviewed the 

medical record, and noted examining her. He found that she had normal knee stability and 

alignment with no crepitus on motion, no meniscal signs, and no popliteal fullness. Dr. Meller 

also found no bruises, abrasions, or ecchymosis, and no cutaneous lesions, including any sites of 

impact from the cabinet. He explained that a right knee MRI scan one month following the 

injury showed a bone bruise or contusion but that a subsequent MRI scan of the right knee 

demonstrated that the prior findings had healed or disappeared. Dr. Meller explained that 

appellant had patellofemoral retropatellar chondromalacia, which was another term for arthritis 

of the right kneecap. He advised that this was normal for her age. Dr. Meller advised that it had 

no relationship to the original injury. He stated that it was the type of arthritis which caused 

anterior knee pain with activities such as kneeling, squatting, or extensive stair climbing but was 

not the type of finding which prevented someone from performing clerical office work. 

Dr. Meller opined that she had no objective structural lesions relating to work preventing her 

from carrying out her work duties. He indicated that appellant was capable of returning to her 

preinjury occupation without any restrictions and needed no further treatment. Dr. Meller opined 

that any mood disorders or behavioral confounders were not work related. 

The Board finds that Dr. Meller’s opinion is entitled to special weight as his report is 

sufficiently well rationalized and based upon a proper factual background. OWCP properly 

relied upon his reports in finding that appellant’s employment-related condition had resolved. 

Dr. Meller examined her, reviewed his medical records, and reported an accurate history. He 

indicated that appellant’s accepted right knee contusion had resolved and her present right knee 

condition was degenerative and not employment related. Because appellant no longer has 

residuals or disability related to her accepted employment condition, the Board finds that OWCP 

met its burden of proof to terminate compensation benefits. 

                                                             8

 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.4(f) (July 2011). 

9 Id. See L.J., Docket No. 13-1920 (issued February 18, 2014). 

10 Appellant alleged before OWCP that Dr. Robert Smith was not a second opinion physician for OWCP in the 

present claim for the right knee contusion. However, the record clearly reflects that OWCP referred her to him 

regarding the right knee condition and the affect of this condition on other parts of her body. 
7

OWCP received a July 22, 2013 report from Dr. Syvertsen who conducted a disability 

examination and diagnosed major depressive disorder. Dr. Syvertsen indicated that appellant’s 

inability to complete activities of daily living was “partially due physical limitations and partially 

due to lack of motivation and increased discomfort in social settings.” On August 9, 2013 

Dr. Mo diagnosed chronic knee, leg shoulder, and back pain. The Board notes that neither 

physician specifically addressed the May 23, 2011 right knee contusion or explained how any 

diagnosed condition was causally related to the May 23, 2011 right knee contusion. These 

reports are insufficient to overcome the weight accorded to Dr. Meller’s report or to create a new 

conflict.11 OWCP also received a report from a counselor. However, this report is of no 

probative value as she is not a physician under FECA and, therefore, not competent to provide a 

medical opinion.12 

The Board notes that, subsequent to the examination and on appeal, appellant challenged 

the selection of the impartial medical examiner, Dr. Meller, and asked to be given a list of three 

physicians from which to select an impartial specialist. Furthermore, appellant argued that he 

had no credibility and was sued for malpractice. 

To select a referee physician, OWCP used a medical management application with a 

strict rotational scheduling feature.13 It documented the selection of Dr. Meller with an ME023 

form, which also indicated that no physicians were bypassed. Appellant raised an objection to 

the selection when OWCP proposed to terminate her benefits and alleged that he was biased. As 

noted above, a claimant may participate in the selection if a valid reason is established. 

However, a general allegation that a physician is biased, without supporting documentation, is 

not sufficient.14 Appellant did not provide any supporting documentation as to bias in this claim. 

There is no unqualified right to participate in the selection of an impartial specialist.15 There is 

no evidence that Dr. Meller was improperly selected. The Board has held that an impartial 

medical specialist properly selected by OWCP will be presumed unbiased and the party seeking 

disqualification bears the substantial burden of proving otherwise.16 Here, there is no evidence 

of record supporting that Dr. Meller was unqualified to render an impartial opinion at the time he 

examined appellant or that his opinion was biased. 

Appellant on appeal also repeated her arguments that the photographs were not 

mentioned in Dr. Meller’s report. However, as explained, the Board has found that he conducted 

a complete examination and provided a well-rationalized opinion finding that appellant’s 

                                                             11 See Jaja K. Asaramo, 55 ECAB 200 (2004). 

12 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physicians assistants, nurses and physical 

therapists are not competent to render a medical opinion under FECA); Charley V.B. Harley, 2 ECAB 208 (1949) 

(the Board held that medical opinion, in general, can only be given by a qualified physician). See also 5 U.S.C. 

§ 8101(2). 

13 J.G., Docket No. 13-965 (issued December 11, 2013); see supra note 8 at Chapter 3.500.5 (March 2013). 

14 S.C., Docket No. 12-801 (issued January 4, 2013). 

15 A.H., Docket No. 11-2080 (issued July 26, 2012). 

16 59 ECAB 471, 480 (2008). 
8

employment-related condition had resolved. Appellant has provided no medical evidence 

addressing why mention of such photographs was medically necessary for a proper report. She 

also argued that she had not recovered from her work injury and continued to have residuals. 

Appellant indicated that OWCP was not clear in its termination decision and argued that the 

reasoning was not definitive enough. She also argued that her due process rights were violated. 

However, the record indicates that appellant was given a pretermination notice on February 26, 

2014 and had an opportunity to submit evidence supporting her claim. OWCP’s termination 

notice and its termination decision also made sufficient findings and offered a statement of 

reasons to provide appellant a reasonable explanation for the basis of OWCP’s action. Appellant 

also asserted that her attempts to expand her claim were disregarded and asserted matters 

pertaining to her other claims. The Board notes however that it only has jurisdiction over the 

March 31, 2014 decision in the present claim.17 

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 in terminating appellant’s benefits 

effective April 6, 2014. 

                                                             17 See 20 C.F.R. § 501.2(c). Appellant may wish to contact OWCP if she wishes to pursue matters in any of her 

other claims. 
9

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office 

Workers’ Compensation Programs is affirmed. 

Issued: February 3, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board