United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Antonio, TX, Employer 

__________________________________________ 

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Docket No. 15-0885 

Issued: July 21, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 13, 2015 appellant filed a timely appeal from a February 26, 2015 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. 

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective September 11, 2014 as he no longer had any 

residuals causally related to his accepted employment-related injuries. 

FACTUAL HISTORY 

On March 11, 2011 appellant, then a 52-year-old mail processor, filed an occupational 

disease claim and claim for compensation alleging that his degenerative joint disease and left 

 1

 5 U.S.C. § 8101 et seq. 
2

knee pain were caused or aggravated by walking on the cement floor at work. He first became 

aware of his knee conditions on February 23, 2011 and that they were caused or aggravated by 

his employment on March 10, 2011. Appellant stopped work on January 17, 2012. OWCP 

accepted the conditions of bilateral internal knee derangement, left posterior meniscus tear, and 

right lateral meniscus tear. It paid benefits including benefits for January 17, 2012 left knee 

arthroscopic partial medial and lateral meniscectomies and a July 23, 2012 right knee 

arthroscopic surgery. Appellant received compensation on the periodic compensation rolls as of 

January 17, 2012. On January 25, 2013 he returned to light-duty work on a full-time basis. 

In order to determine appellant’s current condition and to ascertain whether he continued 

to suffer residuals from his accepted conditions, OWCP referred him, a copy of his medical 

records, a statement of accepted facts, and a list of questions to Dr. James E. Butler, a Boardcertified orthopedic surgeon, for a second opinion examination. In an April 30, 2013 report, 

Dr. Butler noted appellant’s history of injury and reviewed his medical records. He conducted a 

physical examination and reported that the current objective findings on examination included: 

normal bilateral knee range of motion; intact sensation and strength bilaterally of the lower 

extremities; negative varus/valgus, McMurray’s test, Lachman, and posterior drawer tests 

bilaterally; and mild bilateral knee crepitation. Dr. Butler opined that appellant’s work injury 

had resolved with no disabling residuals six months postsurgery and recommended no further 

medical treatment. He stated that the April 30, 2013 functional capacity evaluation demonstrated 

that appellant could meet the job duties of a mail processor/clerk, which were classified as light 

work. Dr. Butler opined that appellant met the overall physical demands of a mail processor. As 

his bilateral knee examination was essentially normal with no significant abnormalities, appellant 

could return to work in his unrestricted full-duty position. 

OWCP forwarded Dr. Butler’s report on June 7, 2013 to appellant’s treating physicians 

for comment. Dr. Helo Chen, a Board-certified internist, reviewed Dr. Butler’s report and, 

although he signed the form noting his agreement with Dr. Butler’s assessment that appellant’s 

work injuries had resolved, in his written report of June 20, 2013 he restricted appellant to only 

six hours a day. 

OWCP found a conflict of medical opinion as to appellant’s work capacity and referred 

her, a copy of his medical records, a statement of accepted facts and a list of questions to Dr. Rex 

Wilcox, a Board-certified orthopedic surgeon, for an impartial medical opinion.2

 In a 

November 27, 2013 report, Dr. Wilcox stated that appellant was evaluated on July 13, 2013. He 

noted the history of the injury and that appellant had returned to work with restrictions. 

Dr. Wilcox also presented his review of the medical record and presented findings on 

musculoskeletal and neurological examination. He diagnosed medial meniscus tear old; left 

knee, current medial meniscus tear; right knee, current lateral meniscus tear; bilateral knees with 

degenerative joint disease as well as torn medial lateral meniscus. Dr. Wilcox stated that there 

were no objective findings of pain and no swelling or other physical signs of problems with 

either knee. He stated that there was objective evidence that the accepted work-related 

conditions had improved since the date of injury as there was no swelling, no instability, good 

 2

 Appellant subsequently filed a claim for wage-loss compensation for the period May 23 to August 25, 2013, 

which OWCP denied by decision dated November 25, 2013. 
3

range of motion, and good strength. Dr. Wilcox noted that appellant had some soreness about 

the knees, especially when he was standing or walking on his legs for more than two hours at a 

time. He opined that the accepted conditions had resolved. Dr. Wilcox noted that appellant also 

had degenerative changes in his knees and the residual soreness was likely due to the preexisting 

arthritic changes. He stated that appellant had surgery on both of his knees for torn menisci 

bilaterally and was left with degenerative changes in his knees that were likely the source of his 

persistent complaints of pain. Dr. Wilcox noted that appellant was working as a clerk, standing 

for two hours a day and sitting for six hours and he did not believe that this level of activity 

should change based on his examination. In his December 9, 2013 work capacity evaluation, 

Dr. Wilcox opined that appellant could perform his usual job with permanent restrictions on 

sitting, walking, standing, twisting, squatting, kneeling, and climbing. He noted that the 

restrictions were related to degenerative changes in the knees. 

On December 31, 2013 OWCP requested clarification from Dr. Wilcox concerning his 

report. In a February 26, 2014 report, Dr. Wilcox stated that appellant was working as a clerk, 

standing two hours a day and sitting six hours a day, and that he was able to do work at this 

level. He indicated that appellant has degenerative arthritis in his knees, which limited him from 

doing extremely physical work, and that the April 30, 2012 functional capacity study by 

Dr. Butler confirmed those findings. Dr. Wilcox also noted that appellant was at his baseline. 

He stated that appellant’s work injuries had ceased/resolved. Dr. Wilcox noted that appellant 

had injuries caused by the accepted work injuries to the cartilage in his knees and continued to 

have arthritic changes, which caused pain and limitations. He opined that appellant was able to 

perform full-duty work as a clerk. 

OWCP received a February 21, 2014 request for physical therapy from Dr. Chen, copies 

of diagnostic testing dated April 29, 2014, and documentation of appellant’s medical 

appointments. 

On July 15, 2014 OWCP issued a notice of proposed termination of medical benefits and 

wage-loss compensation. It found that Dr. Wilcox’s impartial opinion established that 

appellant’s accepted conditions had resolved and he no longer had any residuals of his accepted 

work-related medical conditions or continued disability from work. The restrictions for his work 

were related solely to remaining degenerative arthritis not work related. Appellant was provided 

30 days in which to submit additional evidence or argument. 

OWCP received previous diagnostic testing dated May 19, 2011, July 18 and 

September 5, 2012, and April 29, 2014, as well as documents including statements to the Equal 

Employment Opportunity (EEO) Commission, a request for notification of absence, return to 

work medical clearance certification from Dr. Chen, a picture of overflow of trays on a top rack 

and job offers dated January 25 and August 16, 2013. 

In a May 29, 2014 report, Dr. Chen noted improvement in appellant’s bilateral knee 

flexion and extension, but stated that the effects of the work injury persisted and pain and 

disability from the injury limited appellant’s activities of daily living. He noted that appellant 

returned to modified duty on April 23, 2014. Dr. Chen opined that appellant continued to suffer 

from disability due to injuries sustained from his work-related accident. 
4

In an August 8, 2014 progress note, Dr. Chen noted appellant’s knee pain was stable as 

long as he was not doing lots of climbing or walking. In an August 8, 2014 report, he noted 

review of Dr. Wilcox’s report and disagreed that appellant could perform the essential parts of 

the job duties and physical requirements in the proposed job recommendations as indicated on 

OWCP-5c form dated February 26, 2014. Dr. Chen stated that appellant required further 

rehabilitation treatment prior to returning to full-duty work. He stated that appellant continued to 

experience pain in his knees which varied in intensity. Dr. Chen also noted that appellant’s 

medications could affect his ability to work. He opined that appellant was unable to return to 

work at full capacity at this time and that returning him to full duty would be premature and 

cause further degeneration of his knees. Dr. Chen recommended a reevaluation to determine 

appellant’s work limitations. 

By decision dated September 11, 2014, OWCP terminated appellant’s entitlement to 

wage-loss and medical compensation benefits effective September 11, 2014. It found the weight 

of the medical evidence of file was represented by the impartial opinion of Dr. Wilcox and 

established that appellant no longer had any residuals related to his accepted work-related 

medical conditions. 

On October 8, 2014 OWCP received appellant’s October 1, 2014 request for 

reconsideration. Evidence received in support of the reconsideration included appellant’s 

discussion of the evidence and allegations that the employing establishment discriminated, 

harassed, and retaliated against him, and that the Department of Labor erred in denying his 

compensation claims, a September 18, 2014 letter from Office of Personnel Management 

regarding Federal Employees’ Retirement System (FERS) retirement payments, an October 2, 

2014 e-mail to talk to DOL regarding assistance, a September 8, 2014 request for a copy of his 

file, and a June 9, 2014 return to work medical clearance certification for modified duty from 

Dr. Chen. 

By decision dated February 26, 2015, OWCP denied modification of its termination 

decision. 

LEGAL PRECEDENT -- ISSUE 1 

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

of compensation. After it has been determined that an employee has disability causally related to 

her employment, OWCP may not terminate compensation without establishing that the disability 

had ceased or that it was no longer related to the employment.3

 OWCP’s burden of proof 

includes the necessity of furnishing rationalized medical opinion evidence based on a proper 

factual and medical background.4

 Furthermore, the right to medical benefits for an accepted 

condition is not limited to the period of entitlement for disability. To terminate authorization for 

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

4 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 
5

medical treatment, OWCP must establish that a claimant no longer has residuals of an 

employment-related condition that requires further medical treatment.5

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.6

 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 

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

connection with the case.7 In situations where there exist opposing medical reports of virtually 

equal weight and rationale and the case is referred to an impartial medical specialist for the 

purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized 

and based upon a proper factual background, must be given special weight.8 

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for bilateral internal knee derangement; other tear of 

medial meniscus of the left knee; and right knee tear of lateral meniscus. It eventually retained 

him on the periodic compensation rolls and paid compensation and medical benefits, including 

January 17, 2012 left knee arthroscopic partial medial and lateral meniscectomies, and a July 23, 

2012 right knee arthroscopic surgery. OWCP found that termination of appellant’s 

compensation and medical benefits were justified based on the impartial medical opinion of 

Dr. Wilcox. 

In order to determine appellant’s current condition and to ascertain whether he continued 

to suffer residuals from his accepted conditions, OWCP had referred appellant to Dr. Butler, a 

Board-certified orthopedic surgeon, for a second opinion examination. In an April 30, 2013 

report, Dr. Butler opined that appellant’s work injury had resolved with no disabling residuals. 

He further opined that the functional capacity evaluation findings and his examination supported 

that appellant could return to work in his usual position full-duty unrestricted. On June 20, 2013 

Dr. Chen reviewed Dr. Butler’s report and although he signed a form indicating his agreement 

that appellant’s work-related injuries had resolved with no disabling residuals, he later wrote in 

his narrative report that appellant could only work six hours a day. OWCP found a conflict in 

medical opinion requiring resolution through an impartial medical examiner. It referred 

appellant to Dr. Wilcox to resolve the conflict. 

The Board finds that OWCP properly relied on the well-rationalized November 27, 2013 

report of Dr. Wilcox. Dr. Wilcox found that the work-related conditions had resolved and the 

degenerative changes in his knees and residual soreness were a result of appellant’s preexisting 

 5 Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997). 

6

 5 U.S.C. § 8123(a). 

7

 20 C.F.R. § 10.321. 

8 Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001). 
6

arthritic changes. Further, he found that the accepted employment-related conditions had 

resolved and appellant could perform his usual job with permanent restrictions due to the 

degenerative changes in his knees. OWCP requested clarification and in his February 26, 2014 

report, Dr. Wilcox advised that appellant was at his base line working as clerk, which entailed 

two hours a day standing and sitting six hours a day. He reiterated that appellant’s work injuries 

had resolved and he was able to do full-duty work as a clerk. Dr. Wilcox further opined that 

although appellant did have injuries to the cartilage in his knees, the arthritic changes in his 

knees caused pain and limitations. 

In his May 29, 2014 report, Dr. Chen opined that appellant continued to suffer from 

disability due to injuries sustained from his work-related accident. In his August 8, 2014 report, 

he reviewed Dr. Wilcox’s report and noted that Dr. Wilcox had indicated that appellant had 

injuries to the cartilage in his knees. Dr. Chen stated that this condition was causally related to 

appellant’s accepted work injury and had not ceased. He opined that appellant was unable to 

return to full-duty capacity as it would cause further degeneration of his knees and appellant 

required further rehabilitation treatment prior to returning to full-duty work. As Dr. Chen was 

one of the physicians to have created the conflict, his report is insufficient to overcome the 

weight afforded Dr. Wilcox’s report. Reports from a physician, who was on one side of the 

medical conflict that an impartial specialist resolved, are generally insufficient to overcome the 

weight accorded the opinion of the impartial physician or to create a new conflict.9

 The Board 

finds that as Dr. Wilcox provided a comprehensive, well-rationalized opinion in which he 

provided physical examination findings, his opinion is entitled to the special weight accorded an 

impartial medical examiner and constitutes the weight of the medical evidence.10

CONCLUSION 

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

compensation benefits effective September 11, 2014. 

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

10 See L.B., Docket No. 14-1794 (issued January 7, 2015). 
7

ORDER 

IT IS HEREBY ORDERED THAT the February 26, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 21, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board