United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Columbus, OH, Employer 

__________________________________________ 

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Docket No. 15-1020 

Issued: November 13, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 April 2, 2015 appellant, through counsel, filed a timely appeal from a December 8, 

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 met its burden of proof to terminate wage-loss 

compensation and medical benefits effective October 7, 2013, and (2) whether appellant has met 

her burden of proof to establish continuing employment-related disability or residuals after 

October 7, 2013. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 10, 2009 appellant, then a 43-year-old mail processing clerk, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained a right hip injury in the 

performance of duty on November 9, 2009. She indicated on the claim form that she was 

walking, bending, and sweeping when she felt right hip pain. Information provided on the claim 

form did not indicate that appellant had stopped work. The record indicates that appellant began 

to receive supplemental roll payments for partial disability as of December 26, 2009. OWCP 

accepted the claim on January 12, 2010 for right hip and lumbar sprains. On April 1, 2010 it 

expanded the claim to include right knee sprain. 

Appellant was treated by Dr. Timothy Duffey, an osteopath. In a report dated 

November 9, 2010, Dr. Duffey noted that appellant had returned to work shortly after her 

November 9, 2009 injury, but then had been off work for six months. Appellant continued to 

have right knee pain, and a May 10, 2010 magnetic resonance imaging (MRI) scan report noted a 

tear of the lateral meniscus. Dr. Duffey opined that the work injury aggravated a preexisting 

right knee osteoarthritis and caused the torn meniscus. By report dated June 13, 2011, he noted 

that a partial lateral meniscectomy of the right knee was performed. 

The record indicates that on September 22, 2012 appellant accepted a part-time 

modified-duty position, including a 15-pound lifting restriction. Appellant received wage-loss 

compensation offset for actual earnings. On September 25, 2012 OWCP expanded the claim to 

include aggravation of right knee osteoarthritis. 

OWCP referred appellant for a second opinion examination with Dr. Manhal Ghanma, a 

Board-certified orthopedic surgeon. In his February 19, 2013 report, Dr. Ghanma provided a 

history and results on examination. He opined that the accepted hip, lumbar, and right knee 

sprains had resolved. Dr. Ghanma reported there was no evidence of a continuing aggravation of 

right knee osteoarthritis, and any aggravation would have been a temporary flare-up of 

symptoms. He opined that appellant could perform her date-of-injury position and there was no 

employment-related disability. 

Appellant returned to a full-time, modified-duty position on March 1, 2013. Dr. Duffey 

noted in a March 26, 2013 report that appellant continued to have work restrictions with respect 

to her right knee as she continued to have swelling and pain, with a diminished ability to walk. 

OWCP determined that a conflict in the medical evidence existed between Drs. Duffey 

and Ghanma with respect to appellant’s employment-related condition and disability. To resolve 

the conflict, Dr. Michael Lefkowitz, a Board-certified orthopedic surgeon, was selected as a 

referee physician. 

In a report dated July 9, 2013, Dr. Lefkowitz provided a history, results on examination, 

and noted his review of the medical evidence. He opined that the employment-related hip, back, 

and knee sprains had resolved, noting that they were soft tissue injuries that had been resolved 

since the 2009 injury. Dr. Lefkowitz noted that an aggravation of right knee osteoarthritis was 

not the cause of appellant’s current symptoms, but that her current symptoms related instead to 

right hip arthritis. He noted that she was clear that her initial symptoms did not occur in the right 
3

knee, and that right knee pain could arise from hip arthritis. Dr. Lefkowitz further noted, 

“Numerous physician reports as well as [appellant’s] own reported injury point to a mechanism 

more involving the hip than the knee. Therefore, I do not believe the medical evidence in fact 

supports an aggravation substantial of the right knee osteoarthritis, but instead if anything would 

have supported osteoarthritis of her right hip. This of course is a retrospective review and thus I 

am not suggesting that appellant add aggravation of the right hip arthritis, but rather simply that 

the diagnosis of osteoarthritis aggravation of her right knee is not medically supported by this 

chart.” Dr. Lefkowitz opined that the “aggravation of preexisting osteoarthritis I do not believe 

is currently the main cause of her symptoms and in addition I am unclear as to whether this 

should have been an allowed condition. Therefore, I do not believe that appellant’s current 

residual limitations are based on her work-related conditions. I do, however, feel that her 

medical conditions, which again are not work related, are causing her to have limitations in her 

activities. I do not feel that it is safe for her to kneel or squat.” 

By letter dated September 5, 2013, OWCP advised appellant that it proposed to terminate 

her compensation for wage-loss and medical benefits.2

 Appellant was advised to submit 

evidence or argument within 30 days. She submitted an October 1, 2013 report from Dr. Duffey, 

stating that she continued to have right knee pain. 

By decision dated October 7, 2013, OWCP terminated compensation for wage-loss and 

medical benefits, finding that the medical evidence established that appellant’s accepted 

employment-related conditions had resolved. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

in a letter dated October 9, 2013. A hearing was held on April 15, 2014. By decision dated 

June 27, 2014, the hearing representative affirmed the October 7, 2013 termination. He found 

the weight of the evidence rested with Dr. Lefkowitz. 

Appellant requested reconsideration by letter dated September 9, 2014. She submitted an 

August 11, 2014 report from Dr. Charles May, an osteopath. Dr. May wrote that he did not 

understand how OWCP could accept the report of Dr. Lefkowitz, who did not accept right knee 

osteoarthritis aggravation. He opined that appellant had an employment-related aggravation of 

right knee osteoarthritis. In a report dated September 12, 2014, Dr. Duffey noted that he had last 

seen her on October 1, 2013. He noted that appellant had damage to the articular surface of the 

right knee from the work injury. Dr. Duffey opined that she had sustained a lateral meniscus tear 

from the employment injury. He noted that appellant had abnormal mechanics and misalignment 

of the knee that would increase in severity over the years. 

By decision dated December 8, 2014, OWCP reviewed the case on its merits, but denied 

modification. 

 2

 According to the record, appellant was not then receiving wage-loss compensation. As noted above, she had 

returned to full-time work on March 1, 2013. 
4

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 

his or her hemployment, OWCP may not terminate compensation without establishing that the 

disability had 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

It is well established that when a case is referred to a referee medical specialist for the 

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

based on a proper factual and medical background, must be given special weight.5 

ANALYSIS -- ISSUE 1 

In the present case, OWCP accepted that appellant sustained right hip, right knee, and 

lumbar sprains, as well as aggravation of right knee osteoarthritis, in the performance of duty on 

November 9, 2009. It terminated compensation, effective October 7, 2013. With respect to the 

accepted conditions, it is OWCP’s burden of proof to terminate compensation for wage-loss and 

medical benefits.6

OWCP found that a conflict existed under 5 U.S.C. § 8123(a) with respect to the status of 

appellant’s employment-related conditions.7 Attending physician Dr. Duffey opined that 

appellant continued to have an employment-related aggravation of right knee osteoarthritis 

causing work restrictions. A second opinion physician, Dr. Ghanma, opined in a February 19, 

2013 report that appellant’s employment-related conditions had resolved. OWCP properly 

determined that a conflict existed in the medical opinion evidence and selected Dr. Lefkowitz as 

a referee physician to resolve the conflict. 

 3 Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503. 

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

5 Harrison Combs, Jr., 45 ECAB 716, 727 (1994). 

6

 As noted above, the record indicated that appellant had returned to full-time work as of March 1, 2013 and had 

not been receiving wage-loss compensation at the time of the October 7, 2013 decision. 

7

 FECA provides that, if there is a 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 the 

examination. 5 U.S.C. § 8123(a). The implementing regulation states 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 or impartial 

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

connection with the case. 20 C.F.R. § 10.321. 
5

The Board finds that Dr. Lefkowitz provided a rationalized opinion that appellant’s 

accepted conditions had resolved. Dr. Lefkowitz explained that the accepted sprains were soft 

tissue injuries that had resolved. As to the aggravation of right knee osteoarthritis, counsel 

argued before OWCP’s hearing representative that Dr. Lefkowitz had failed to acknowledge that 

it was an accepted condition. Dr. Lefkowitz, however, did indicate that it was an accepted 

condition, and in the context of a termination, the issue is whether appellant continued to have 

residuals of the aggravation of right knee osteoarthritis. If he had failed to address the accepted 

condition then his opinion would be of diminished probative value.8

 In this case, however, 

Dr. Lefkowitz clearly opined that appellant did not have continuing right knee osteoarthritis. He 

explained that her right knee symptoms were instead due to right hip osteoarthritis. 

As to the accepted conditions in this case, the Board finds that Dr. Lefkowitz represents 

the weight of the medical evidence. As noted above, a rationalized opinion from a referee 

physician is entitled to special weight. OWCP, therefore, met its burden of proof to terminate 

compensation for wage-loss and medical benefits for the accepted conditions effective 

October 7, 2013. 

LEGAL PRECEDENT -- ISSUE 2 

Appellant has the burden to establish any additional conditions for which compensation is 

claimed as causally related to the employment injury.9 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 he had an employment-related condition or 

disability which continued after termination of compensation benefits.10 

ANALYSIS -- ISSUE 2 

After the June 27, 2014 decision, affirming the termination of compensation, appellant 

requested reconsideration and submitted an August 11, 2014 report from Dr. May. This report is 

insufficient to meet her burden of proof to establish a continuing employment-related disability 

after October 7, 2013. Dr. May reported that he did not understand how OWCP could accept the 

report of Dr. Lefkowitz. The report of Dr. Lefkowitz provided a rationalized medical opinion 

that the accepted conditions had resolved. Dr. May opined that appellant had an aggravation of 

right knee osteoarthritis, but did not discuss whether she continued to have an 

employment-related disability after October 7, 2013. He did not provide a rationalized medical 

opinion on the issue of continuing disability. 

Appellant also submitted a September 12, 2014 report from Dr. Duffey. Dr. Duffey 

noted that he last treated her on October 1, 2013. He, however, does not provide a rationalized 

 8 See P.G., Docket No. 13-0902 (issued February 20, 2014). 

9 Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989); see also G.B., Docket 

No. 14-1241 (issued June 22, 2015). 

10 Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).
6

opinion with respect to a continuing employment-related disability after October 7, 2013. 

Dr. Duffey reported that appellant had damage to the articular surface of the right knee, opined 

that a meniscus tear was causally related to the November 9, 2009 employment injury, and that 

the condition continued to cause symptoms.11 He did not, however, provide a rationalized 

medical opinion based on a complete history.12 Dr. Duffey did not discuss the employment 

injury, the medical history, or the mechanism of injury explaining why he believed appellant 

sustained a lateral meniscus tear in the performance of duty on November 9, 2009. 

It is appellant’s burden of proof to establish a continuing employment-related disability 

after proper termination of compensation. The Board finds the medical evidence submitted is 

insufficient to meet her burden of proof. 

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 OWCP met its burden of proof to terminate compensation for wage-loss 

and medical benefits for the accepted conditions. The Board further finds that appellant did not 

meet her burden of proof to establish an employment-related continuing disability after 

October 7, 2013. 

 11 As noted in the factual history, appellant underwent right knee arthroscopic surgery on June 13, 2011. 

12 Medical rationale is a medically sound explanation for the opinion offered. See Ronald D. James, Sr., Docket 

No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 (1983)(the evidence must convince the 

adjudicator that the conclusion drawn is rational, sound and logical). 
7

ORDER 

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

Compensation Programs dated December 8, 2014 is affirmed. 

Issued: November 13, 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