United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Berkeley Heights, NJ, Employer 

__________________________________________ 

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Docket No. 15-0494 

Issued: September 26, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 5, 2015 appellant, through counsel, filed a timely appeal from a 

September 20, 2014 merit decision of Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of the case. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

compensation benefits on August 1, 2013 as the accepted condition had resolved with no 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

residuals; and (2) whether appellant established that she had any continuing employment-related 

disability or condition after August 2, 2013 due to her accepted right knee condition. 

On appeal, counsel asserts that OWCP did not meet its burden to terminate benefits 

because the statement of accepted facts (SOAF) was incorrect. He further maintains that the 

opinion of the referee specialist is not sufficiently rationalized to carry the weight of the medical 

evidence and that because he performed fitness-for-duty examinations for the employing 

establishment, his report should be excluded. 

FACTUAL HISTORY 

On June 28, 2003 appellant, then a 42-year-old mail carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on June 18, 2003 she was injured when a heavy mail flat struck her 

right knee. She stopped work on June 26, 2003. On July 29, 2003 OWCP accepted that 

appellant sustained an internal derangement of the right knee (posterior horn of the right medial 

meniscus). Appellant was placed on the periodic compensation rolls. 

In July 2003 appellant was treated by Dr. Monica Mehta, a Board-certified physiatrist. 

On December 15, 2003 Dr. Allen Glushakow, a Board-certified orthopedic surgeon, performed 

authorized arthroscopic surgery on the right knee. The postoperative diagnosis was partial tear 

of the anterior cruciate ligament and osteochondral fracture of the medial femoral condyle. 

OWCP additionally accepted closed fracture of right femoral condyle and other internal 

derangement of right knee. 

In the ensuing years, OWCP referred appellant for a number of second opinion and 

impartial medical evaluations.3

 Appellant continued to receive wage-loss compensation.4

Dr. Mehta conducted a functional capacity evaluation on February 26, 2011. She 

determined that appellant could not perform duties of a letter carrier and was unable to return to 

work in any capacity because she was not capable of any lifting. On March 19, 2011 Dr. Mehta 

advised that appellant could work eight hours a day with indefinite physical restrictions. In 

reports dated March 26 to June 15, 2012, she advised that beginning in December 2008 appellant 

had severe complaints of radiating back pain. Dr. Mehta opined that, in addition to the accepted 

right knee condition, appellant’s lumbosacral pain syndrome and left knee derangement were due 

to trauma sustained at work and as a result of the right knee injury. 

 3

 Appellant was evaluated by Dr. I. Ahmad in April 2004, Dr. Paul A. Foddai in March 2005, Dr. David I. 

Rubinfeld in June 2006, Dr. Robert Dennis in May 2007, Dr. James A. Charles in May 2010, and Dr. Wayne J. 

Altman in June 2010. With the exception of Dr. Charles, a Board-certified neurologist, all physicians are Boardcertified orthopedic surgeons. 

4

 An April 5, 2012 investigative report from the employing establishment’s Office of Inspector General advised 

that surveillance was conducted on appellant during the period December 2011 through March 2012 where she was 

observed and videotaped driving, walking, walking briskly, walking up and down steps, and bending with no 

apparent difficulty. The investigation also revealed that she was enrolled in and attended computer school. 

Attached exhibits included appellant’s signed acknowledgement of rights, still photographs, surveillance video, 

appellant’s resume, and a memorandum of interview. 
3

In June 2012 OWCP referred appellant to Dr. Jeffrey F. Lakin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a July 10, 2012 report, Dr. Lakin noted 

his review of the record, including a SOAF and video evidence. He provided physical 

examination findings and advised that, based on his evaluation, appellant was not disabled and 

was capable of performing her regular job as letter carrier for eight hours a day with no 

restrictions.5

 

OWCP determined that a conflict of medical opinion had been created between 

Dr. Mehta and Dr. Lakin regarding appellant’s diagnosis and whether she had any continuing 

disability causally related to the June 18, 2003 employment injury. On December 6, 2012 it 

referred her to Dr. Arthur T. Canario, a Board-certified orthopedic surgeon, for an impartial 

evaluation. Dr. Canario was also asked to address whether appellant’s lumbar and left knee 

conditions were related to the work injury to her right knee. 

In a January 7, 2013 report, Dr. Canario noted the history of injury, appellant’s complaint 

of neck and back pain that radiated into her arms and legs, and his review of the record, 

including surveillance data. Physical examination findings included full range of motion of the 

cervical spine with negative Spurling’s test, normal reflexes in both upper extremities, and no 

sensation loss, weakness, or atrophy. Straight-leg raising produced knee pain, but no back pain, 

and appellant had full lumbar range of motion when distracted. Right knee motion was from 

0 to 140 degrees. There was no instability. Anterior and posterior draw test, Lachman’s sign, 

pivot shift, McMurray, and Apley’s signs were all negative. There was no effusion, synovial 

thickening, and no atrophy. Appellant complained of generalized, circumferential tenderness. 

Left knee examination demonstrated similar findings. Dr. Canario advised that her lumbar 

condition and left knee complaints were neither secondary to the employment injury nor due to 

any alteration of gait, noting that these could not be substantiated by clinical, objective findings. 

He noted that appellant did not have a meniscal tear, but a cruciate ligament tear and that she had 

been vastly over-treated and had little in the way of pathology. Dr. Canario opined that there 

was a large degree of symptom embellishment and that she should have returned to work 

approximately six weeks after the right knee arthroscopic procedure. He concluded that 

appellant could return to regular duty without restriction. 

On March 14, 2013 OWCP proposed to terminate appellant’s medical benefits and 

monetary compensation. It found that Dr. Canario’s opinion that her work-related conditions 

had resolved was entitled to the special weight accorded a referee opinion. 

Appellant, through counsel, disagreed with the proposed termination. Counsel 

maintained that Dr. Canario’s opinion was speculative and further suggested that Dr. Canario 

had performed fitness-for-duty examinations for the employing establishment and was therefore 

disqualified from acting as a referee specialist. He attached employing establishment 

 5

 Dr. Lakin’s right knee examination demonstrated less than 3 degrees of extension to 120 degrees flexion; no 

medial or lateral joint line tenderness with minimal tenderness in the medial joint space and minimal effusion; 

negative McMurray’s test, patellofemoral grind, patellofemoral crepitus, patellofemoral apprehension, Apley’s 

compression, and decompression tests; no atrophy of the quadriceps or hamstrings; no anterior or posterior varus or 

valgus instability. Distal neurological status was intact with no signs of peripheral nerve entrapment. Quadriceps 

and hamstring strength was 5/5. 
4

correspondence indicating that a fitness-for-duty examination had been scheduled with 

Dr. Canario on March 30, 2001.6 

In a March 22, 2013 report, Dr. Mehta noted appellant’s continued complaints of 

radiating cervical and low back pain. She again maintained that appellant’s back and left knee 

condition were secondary to the right knee injury, noting that she continued to have complaints 

of pain because of the imbalance of the pelvis secondary to the disturbed pelvic obliquity 

resulting from bilateral knee internal derangement. Dr. Mehta noted her disagreement with the 

findings of the referee physician. On a work capacity evaluation dated April 2, 2013, she 

indicated that appellant was restricted to sitting, walking, standing, reaching, bending, stooping, 

and operating a motor vehicle to 15 minutes, noting that she was unable to stand or walk without 

pain. An April 5, 2013 magnetic resonance imaging (MRI) scan study of the right knee 

demonstrated mild-to-moderate tricompartment chondromalacia with old osteochondral injuries 

and early subchondral degenerative cysts. 

On work capacity evaluations dated April 24 and May 9, 2013, Dr. Canario advised that 

appellant could return to work without restriction. On May 9, 2013 he advised that her torn 

meniscus was removed arthroscopically and was therefore no longer present and that any 

residual symptoms would not prevent her from performing letter carrier duties. Dr. Canario 

further indicated that he last evaluated an employee of the employing establishment on 

September 21, 2012. On June 28, 2013 he indicated that he performed a “fitness-for-duty” 

evaluation for the employing establishment, at the request of OWCP, on September 21, 2012. 

On July 12, 2013 Dr. Canario clarified this to indicate that the evaluation done on September 21, 

2012 was an impartial evaluation for OWCP and not at the behest of the employing 

establishment. He noted that he last performed an evaluation requested by the employing 

establishment on June 7, 2007. 

By decision dated August 1, 2013, OWCP found that the weight of the medical evidence 

rested with the opinion of Dr. Canario who performed the referee examination and finalized the 

termination of benefits. 

Appellant, through counsel, timely requested a hearing. At the hearing, held on 

November 8, 2013, she testified that she began work as a letter carrier in 2002. Appellant 

described her job duties and the June 18, 2003 employment injury. She stated that, shortly after 

the injury, in addition to right knee pain and swelling, she developed back pain that had 

continued. Appellant stated that she could now walk for one-half hour on flat terrain, but was 

limited in bending, stooping, and climbing stairs, and could not lift due to her back. She 

maintained that she could not perform letter carrier duties and had been diagnosed with S1 

radiculopathy and left knee problems which, she felt, were due to the right knee injury. Counsel 

asserted that Dr. Canario’s report contained inconsistencies and that, as he had performed 

fitness-for-duty evaluations for the employing establishment, his report should be excluded. He 

indicated that he would forward a November 6, 2013 report from Dr. Mehta. 

In a January 15, 2014 decision, an OWCP hearing representative affirmed the August 1, 

2013 decision. He found that because Dr. Canario had last performed a fitness-for-duty 

 6

 The correspondence does not indicate that this appointment was for appellant. 
5

examination for the employing establishment more than five years prior to examining appellant, 

he did not regularly perform fitness-for-duty examinations and therefore his evaluation was 

proper. The hearing representative found Dr. Canario’s evaluation was well rationalized and 

entitled to the special weight of an impartial specialist. 

In correspondence dated January 6, 2014, received by OWCP on January 16, 2016, 

counsel forwarded a November 6, 2013 report in which Dr. Mehta described appellant’s medical 

and surgical history. Dr. Mehta indicated that, subsequent to the employment injury, appellant 

had multiple orthopedic and neurologic problems including lumbar and cervical disc herniations, 

cervical and lumbosacral radiculopathy, and left knee derangement. She reiterated that, due to 

the right knee injury, appellant had a pelvic imbalance that caused a spinal abnormality with 

lumbosacral radiculopathy and an indirect lumbar disc herniation. Dr. Mehta indicated that 

appellant could only perform light-duty work. Also forwarded was a March 30, 2012 lumbar 

MRI scan that demonstrated L4-5 and L5-S1 spinal stenosis with disc herniation and disc 

bulging, and degenerative disc disease. A July 9, 2012 left knee MRI scan demonstrated mild 

tricompartment osteoarthritis, a partial anterior cruciate ligament tear, and medial meniscal 

degenerative change and tear, tendinitis, effusion, and a small Baker’s cyst. 

On May 16, 2014 appellant, through counsel, requested reconsideration. Counsel noted 

that Dr. Mehta’s November 6, 2013 report had not been reviewed by the hearing representative. 

In a merit decision dated September 12, 2014, OWCP denied modification of the prior 

decisions. It reviewed the evidence submitted and determined that the November 6, 2013 report 

from Dr. Mehta, who had been on one side of the conflict in medical evidence, was insufficient 

to overcome the special weight accorded Dr. Canario or to create a new conflict. 

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. It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.7 

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.8

 

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability. To terminate authorization for medical treatment, OWCP must 

establish that a claimant no longer has residuals of an employment-related condition that require 

further medical treatment.9

 

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 

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

8 Id.

9 T.P., 58 ECAB 524 (2007). 
6

shall appoint a third physician who shall make an examination.10 The implementing regulations 

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 examination, and 

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

connection with the case.11 When 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.12 

The Board has long recognized the importance of the impartiality of the physician 

selected as an impartial medical specialist.13 In selecting an impartial medical specialist, the 

physician so designated should be one who is wholly free to make a completely independent 

evaluation and judgment.14 A physician performing fitness-for-duty examinations for the 

employing establishment may undermine the appearance of impartiality and disqualify the 

physician from serving as an impartial medical specialist.15 OWCP procedures acknowledge that 

medical evidence must be excluded when “the physician selected for referee examination is 

regularly involved in performing fitness-for-duty examinations for the claimant’s employing 

establishment.”16 

ANALYSIS -- ISSUE 1 

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

compensation benefits on August 1, 2013. The accepted conditions in this case are internal 

derangement of the right knee (posterior horn of the right medial meniscus), closed fracture of 

right femoral condyle, and other internal derangement of right knee. OWCP determined that a 

conflict in medical evidence had been created between the opinions of Dr. Mehta, an attending 

physiatrist, and Dr. Lakin, an OWCP referral orthopedic surgeon, regarding whether appellant 

continued to be disabled due to the June 18, 2003 employment injury. It referred her to 

Dr. Canario, Board-certified in orthopedic surgery, for an impartial medical evaluation. 

Counsel asserted on appeal that the SOAF was incorrect because it did not indicate that 

appellant’s December 15, 2003 surgery was authorized. While the SOAF did not specifically 

 10 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

11 20 C.F.R. § 10.321. 

12 V.G., 59 ECAB 635 (2008). 

13 See George W. Coast, 36 ECAB 600 (1985). 

14 Id. 

15 Id.; see also Steve A. Williams, 53 ECAB 772 (2002). 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.12.1(a) (September 2010); see also Part 3 -- Medical, OWCP Referee Examinations, Chapter 3.500.4.b(3) 

(July 2011). 
7

indicate that her right knee surgery was authorized, OWCP procedures do not indicate that an 

essential element of a SOAF is a recitation of medical treatment, whether authorized or not.17 

As to counsel’s assertion on appeal that Dr. Canario’s report should be excluded because 

he had performed fitness-for-duty examinations for the employing establishment, the record 

reflects that Dr. Canario had last completed a fitness-for-duty examination for the employing 

establishment on June 7, 2007 more than five years prior to his January 7, 2013 evaluation of 

appellant. As noted above, OWCP procedures acknowledge that medical evidence must be 

excluded when the physician selected for referee examination is regularly involved in performing 

fitness-for-duty examinations for the claimant’s employing establishment.18 The Board finds 

that in this case, as Dr. Canario had not performed a fitness-for-duty examination for the 

employing establishment since 2007, he is not “regularly involved” and therefore his report need 

not be excluded.19

In his January 7, 2013 report, Dr. Canario noted his review of the SOAF and medical 

records. He described the history of injury and appellant’s complaints of radiating neck and low 

back, and bilateral knee pain. Dr. Canario performed a thorough physical examination. He 

advised that appellant’s lumbar condition and left knee complaints were either secondary to the 

employment injury or to any alteration of gait, noting that these could not be substantiated by 

clinical, objective findings. Dr. Canario noted that she did not have a meniscal tear, but a 

cruciate ligament tear and that she had been vastly over-treated and had little in the way of 

pathology. He opined that there was a large degree of symptom embellishment, and appellant 

should have returned to work approximately six weeks after the right knee arthroscopic 

procedure. Dr. Canario concluded that she could return to regular duty without restriction. On 

work capacity evaluations dated April 24 and May 9, 2013, he advised that appellant could 

return to work without restriction. On May 9, 2013 Dr. Canario advised that her tear was 

removed arthroscopically and was therefore no longer present and that any residual symptoms 

would not prevent her from performing letter carrier duties. He further indicated that he last 

evaluated an employee of the employing establishment on September 21, 2012. 

The Board finds that Dr. Canario provided a comprehensive, well-rationalized opinion in 

which he clearly advised that any residuals of appellant’s accepted right knee conditions had 

resolved and that she could return to her letter carrier duties. Dr. Canario’s opinion is therefore 

 17 Id. at Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.5 (September 2009). See Lan Thi Do, 46 

ECAB 366 (1994). 

18 Supra note 16. 

19 See Christine L. Trowbridge, Docket No. 88-1625 (issued May 3, 1989) (physician who examined one postal 

worker every month or so would not disqualify a physician from serving as an impartial medical specialist; see also

FECA Bulletin 86-10 (issued December 16, 1985) (three or four fitness-for-duty examinations per year would not 

disqualify a physician from serving as an impartial medical specialist); compare Steve A. Williams, supra note 15 

(three fitness-for-duty examination performed in a four-month period prior to impartial evaluation sufficient to 

exclude impartial medical specialist). 
8

entitled to the special weight accorded an impartial examiner and constitutes the weight of the 

medical evidence.20 

The medical evidence appellant submitted in response to the proposed termination is 

insufficient to overcome the special weight accorded Dr. Canario as an impartial medical 

specialist regarding whether she had residuals of her accepted conditions. In reports dated 

March 22 and April 2, 2013 merely reiterated her findings and conclusions and noted her 

disagreement with his opinion. The Board has long held that reports from a physician who was 

on one side of a medical conflict that an impartial specialist resolved, are generally insufficient to 

overcome the weight accorded to the report of the impartial medical examiner, or to create a new 

conflict.21 Dr. Mehta had been on one side of the conflict resolved by Dr. Canario. Furthermore, 

she did not specifically explain why the accepted right knee conditions caused appellant’s total 

disability. 

The Board therefore concludes that Dr. Canario’s opinion that appellant had recovered 

from the employment injury and could return to regular duty is entitled to the special weight 

accorded an impartial medical examiner,22 and the additional medical evidence submitted is 

insufficient to overcome the weight accorded him as an impartial medical specialist regarding 

whether she had residuals of her accepted conditions. OWCP therefore properly terminated her 

compensation benefits on August 1, 2013.23

LEGAL PRECEDENT -- ISSUE 2 

As OWCP met its burden of proof to terminate appellant’s compensation benefits on 

August 1, 2013, the burden shifted to her to establish that she had any continuing disability 

causally related to her accepted right knee injury.24 Causal relationship is a medical issue. The 

opinion of the physician must be based on a complete factual and medical background of the 

claimant, must be one of reasonable medical certainty and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.25 

ANALYSIS -- ISSUE 2 

The Board finds that appellant submitted insufficient medical evidence with her May 16, 

2014 reconsideration request to establish that she continued to be disabled after August 1, 2013 

due to the June 18, 2003 injury accepted for internal derangement of the right knee (posterior 

 20 Supra note 12. 

21 I.J., 59 ECAB 408 (2008). 

22 Supra note 12. 

23 Id. 

24 See Joseph A. Brown, Jr., 55 ECAB 542 (2004). 

25 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 
9

horn of the right medial meniscus), closed fracture of right femoral condyle, and other internal 

derangement of right knee. 

The MRI scan studies of the left knee and lumbar spine are irrelevant as neither a left 

knee nor a lumbar condition has been accepted as employment related. In the November 6, 2013 

report, Dr. Mehta essentially repeated the content of prior reports, her findings, and opinions. As 

noted above, reports from a physician who was on one side of a medical conflict that an impartial 

specialist resolved, are generally insufficient to overcome the weight accorded to the report of 

the impartial medical examiner, or to create a new conflict.26 Dr. Mehta had been on one side of 

the conflict resolved by Dr. Canario. As such, this report is insufficient to establish that 

appellant continued to be disabled after August 1, 2013 due to the accepted right knee 

conditions.27

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 wage-loss 

compensation and medical benefits effective August 1, 2013 and that she did not establish that 

she had any continuing employment-related disability after that date causally related to the 

June 18, 2003 employment injury. 

 26 Supra note 21. 

27 S.S., 59 ECAB 315 (2008). 
10

ORDER 

IT IS HEREBY ORDERED THAT the September 20, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 26, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board