United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland Heights, OH, Employer 

__________________________________________ 

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Docket No. 14-250 

Issued: May 28, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

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 November 6, 2013 appellant, through his attorney, filed a timely appeal from a 

September 23, 2013 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 

compensation benefits on March 25, 2013 as he no longer had residuals of the accepted 

employment-related conditions. 

On appeal, appellant’s attorney asserts that the September 23, 2013 decision was contrary 

to facts and law. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On December 26, 2002 appellant, then a 44-year-old custodian, filed a traumatic injury 

claim alleging that he injured his lower back and right knee at work on January 19, 2002. He 

stopped work on December 26, 2002 and did not return. The claim was initially accepted for 

lumbar strain/sprain and expanded to include right knee strain, lumbar disc herniations at L3-4 

and L4-5 and chondromalacia patella of the right knee. Appellant received continuation of pay 

and compensation and was placed on the periodic compensation rolls. He retired from the 

employing establishment effective September 10, 2003.2

 

On February 22, 2007 Dr. Bruce T. Cohn, an attending Board-certified orthopedic 

surgeon, performed arthroscopic partial right knee medial meniscectomy. In a January 2, 2008 

report, Dr. Sheldon Kaffen, a Board-certified orthopedist, who performed a second-opinion 

evaluation for OWCP, indicated that there were no objective findings to indicate that appellant 

continued to suffer from the accepted lumbar and right knee strains or right knee chondromalacia 

but that he continued to have residuals of the accepted disc herniations at L3-4 and L4-5. He 

opined that appellant could perform sedentary work for eight hours a day. Appellant was 

referred to vocational rehabilitation in March 2008. 

In a September 25, 2008 report, Dr. Nicholas U. Ahn, an attending Board-certified 

orthopedic surgeon, advised that appellant’s last magnetic resonance imaging (MRI) scan 

demonstrated only mild degenerative changes at L3-4 and L4-5 without significant neural 

compression or stenosis. He indicated that appellant’s symptoms were mechanical rather than 

neurogenic in nature and, due to this and his MRI scan findings, he was reluctant to recommend 

surgery. Dr. Ahn referred appellant for epidural injections. 

In March 2009, OWCP referred appellant to Dr. Karl V. Metz, Board-certified in 

orthopedic surgery, for a second-opinion evaluation. In a July 31, 2009 report, he noted 

inconsistencies on examination of appellant’s lumbar spine and advised that he had reached 

maximum medical improvement regarding the accepted lumbar strain and herniated discs and 

with regard to the right knee strain. Dr. Metz opined that appellant continued to have residuals 

with regard to chondromalacia patella and that maximum medical improvement was reached on 

approximately September 22, 2007. He concluded that appellant was capable of sedentary 

employment and recommended a functional capacity evaluation.3

OWCP determined that a conflict in medical evidence had been created between the 

opinions of Dr. Cohn and Dr. Metz regarding appellant’s continuing work-related disability and 

referred him to Dr. Mark S. Berkowitz, a Board-certified orthopedic surgeon, for an impartial 

medical evaluation. In an October 5, 2010 report, Dr. Berkowitz advised that the lumbar strain 

 2

 In a January 7, 2004 decision, OWCP determined that appellant was not entitled to wage-loss compensation as 

of the date of his retirement. By decision dated August 13, 2004, an OWCP hearing representative vacated the 

January 7, 2004 decision on the grounds that OWCP’s reason for denying compensation was invalid. Appellant was 

returned to the periodic compensation rolls. 

3

 Because appellant did not attend an initially scheduled appointment with Dr. Metz, his wage-loss compensation 

was suspended effective June 12, 2009. Following the July 31, 2009 examination, appellant’s benefits were 

reinstated. 
3

had reached maximum medical improvement but that appellant still had significant symptoms 

due to the herniated discs at L3-4 and L4-5 and continued to need treatment. He also indicated 

that the right knee sprain had reached maximum medical improvement but that the right knee 

chondromalacia had not, noting that on July 15, 2010 appellant had a total knee replacement 

(TKR) on the right. Dr. Metz opined that appellant could not perform the duties of the date-ofinjury position, could not participate in vocational rehabilitation because he was still 

rehabilitating from the TKR and was totally disabled from all work. 

A February 11, 2011 MRI scan study of the lumbar spine demonstrated degenerative disc 

and facet disease with disc protrusions at L1-2 and L5-S1. 

In December 2012, OWCP referred appellant to Dr. Manhal A. Ghanma, a Boardcertified orthopedist, for a second-opinion evaluation. In a December 20, 2012 report, 

Dr. Ghanma noted his review of the statement of accepted facts and medical record and 

appellant’s report of the December 19, 2002 employment injury and complaint of back pain. 

Examination of the lumbosacral spine revealed no spinal listing or abnormal curvature and no 

lumbar spasm. He indicated that appellant presented using a cane and was unable to perform toe 

and heel standing and walking. Dr. Ghanma advised that there was no current evidence to 

support that appellant still had a lumbar sprain/strain, which had resolved and did not have 

objective findings needed to support lumbar disc herniation at L3-4 or L4-5, which were the 

same as they would have been independent of the work injury. He further indicated that there 

was no current evidence to support a right knee sprain or examination finding of chondromalacia 

since appellant had undergone a right TKR. Dr. Ghanma opined that the work-related conditions 

were no longer present or active and diagnosed status post right TKR for severe end-stage 

osteoarthritis and degenerative disc disease of the lumbar spine. He concluded that, based solely 

on the work-related conditions, appellant was able to return to the date-of-injury job but that he 

did require restrictions due to the TKR. 

In a February 19, 2013 letter, OWCP proposed to terminate appellant’s compensation and 

medical benefits on the grounds that the medical evidence, as characterized by Dr. Ghanma’s 

report, established that appellant no longer had residuals or disability due to the accepted 

conditions. Appellant did not respond. By decision March 25, 2013, OWCP finalized the 

termination of wage-loss compensation and medical benefits, effective that day. 

Appellant, through his attorney, timely requested a hearing. On March 28, 2013 

appellant’s elected civil service retirement benefits, effective March 26, 2013. In an April 3, 

2013 report, Dr. Ulf Knothe, an orthopedic surgeon with the Cleveland Clinic,4

 advised that 

appellant was two years post a right TKR. He indicated that appellant was doing very well with 

regard to the right knee but was now complaining of left knee osteoarthritis and that he would 

see appellant as needed. A June 17, 2013 MRI scan study of the lumbar spine demonstrated 

moderate lumbar spondylosis and an extrusion at L2-3 that affected the left L3 nerve root. 

At the hearing, held on July 17, 2013, appellant testified that he received a 30 percent 

benefit from Veterans Affairs (VA) for his right knee and that the July 2010 TKR was paid by 

his private insurance. Appellant’s attorney questioned whether the accepted chondromalacia was 

 4

 Dr. Knothe is certified in Switzerland. 
4

one of the reasons appellant had the TKR, noting that the medical evidence indicated that he 

continued to have restrictions as a result of the TKR procedure. The attorney also asserted that 

objective evidence on MRI scan studies indicated that the disc herniations continued. 

Following the hearing, appellant submitted evidence including a medical scheduler’s 

work lists, drug screenings and an appointment schedule. In correspondence dated August 12, 

2013, the VA advised that appellant received a 30 percent disability rating for chondrosis and 

medial meniscal tear of the right knee. 

Additional medical evidence included an operative report dated September 22, 2009 in 

which Dr. James S. Williams, a Board-certified orthopedic surgeon, performed arthroscopic 

removal of a loose osteochondral fragment and debridement of the right knee. In an August 19, 

2009 report, Dr. Pasha Saaed, Board-certified in anesthesiology and pain management, noted that 

appellant was being seen at the Cleveland Clinic pain management center for evaluation of 

worsening low back, right buttock and right leg pain that began in 2002. He provided physical 

examination findings and diagnosed lumbosacral neuritis. Dr. Saaed recommended out-patient 

pain management and medication. He submitted additional reports dated November 6, 2009 to 

April 6, 2010 in which he described appellant’s condition and pain management progress. 

Dr. Saaed performed epidural steroid injections with good relief.5

 

By decision dated September 23, 2013, an OWCP hearing representative found that the 

weight of the medical evidence rested with the opinion of Dr. Ghanma who advised that 

appellant no longer had residuals of the December 2002 employment injury and affirmed the 

March 25, 2013 decision. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits. It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.6 

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.7

 

ANALYSIS 

OWCP accepted that appellant sustained employment-related lumbar and right knee 

strains, right knee chondromalacia patella and herniated discs at L3-4 and L4-5. Appellant, who 

did not return to work after December 26, 2002, was placed on the periodic compensation rolls. 

 5

 Appellant also submitted a treatment note dated July 9, 2010 from the pain management center, completed by 

Michaelena Glavic, a registered nurse, and Barbara L. Pritchard, a physician’s assistant, that described his pain 

management. 

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

7 Id.
5

In December 2012, OWCP referred appellant to Dr. Ghanma, a Board-certified 

orthopedist, for a second-opinion evaluation. In a December 20, 2012 report, Dr. Ghanma 

provided physical examination findings. He indicated that there was no current evidence of a 

lumbar or right knee strain, that appellant did not have sufficient objective findings to support 

lumbar disc herniations at L3-4 or L4-5, which were the same as they would have been 

independent of the work injury and that, as appellant had a right TKR, chondromalacia patella 

was no longer present. Dr. Ghanma concluded that the work-related conditions were no longer 

active and that, while appellant had physical restrictions related to the TKR, he had no 

restrictions with regard to the accepted conditions. OWCP terminated appellant’s compensation 

and medical benefits based on Dr. Ghanma’s opinion. 

While Dr. Ghanma opined that disc herniations at L3-4 and L4-5 were the same as they 

would have been without the work injury, the disc herniations at L3-4 and L4-5 have been 

accepted as employment related and acceptance of these conditions has not been rescinded. The 

report does not conform to the statement of accepted facts and does not support with adequate 

rationale the determination that residuals have ceased.8

 Dr. Ghanma’s opinion is insufficient to 

establish that appellant’s disability had ceased. OWCP, therefore, did not meet its burden of 

proof to terminate appellant’s compensation and medical benefits for the December 19, 2002 

employment injury.9

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation and medical benefits on March 25, 2013. 

 8 See John L. Hofmann, Docket No. 04-1802 (issued November 22, 2004). 

9

 The Board also notes that, if OWCP pursues further medical development, there is sufficient medical evidence 

of record, including Dr. Berkowitz’ impartial evaluation on October 5, 2010 to require inquiry regarding whether the 

need for appellant’s TKR procedure was a result of the accepted chondromalacia patella. 
6

ORDER 

IT IS HEREBY ORDERED THAT the September 23, 2013 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: May 28, 2014 

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