United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Whitestone, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1303

Issued: March 13, 2018

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 28, 2017 appellant, through his representative, filed a timely appeal from an

April 21, 2017 merit decision of the 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 to consider the merits of this case.

ISSUE

The issue is whether appellant met his burden of proof to establish that he was totally 

disabled from work during the period February 5 to July 17, 2016 causally related to his accepted 

employment conditions.

 

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

FACTUAL HISTORY

On December 31, 2015 appellant, then a 60-year-old city carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed a bilateral knee condition as a result of 

repetitive walking and climbing required in his job. He noted that he first became aware of his 

condition on June 16, 2008 and realized that it was causally related to his federal employment on 

December 31, 2015. Appellant stopped work on September 8, 2015 and returned to work part

time, four hours a day, restricted duty on July 18, 2016. 

An October 6, 2015 magnetic resonance imaging (MRI) scan of the right knee revealed 

horizontal tear of the medial meniscus, chondromalacia, osteoarthritis, intra-articular loose 

bodies, synovitis and patellar tendon tendinosis. On November 4, 2015 Dr. Alexander Golant, a 

Board-certified orthopedist, performed a right knee arthroscopy with removal of loose body, 

partial medial meniscectomy, chondroplasty of the femoral trochlea and medial femoral condyle, 

limited synovectomy, and abrasion arthroplasty.3 He diagnosed right knee medial meniscus tear, 

degenerative arthritis, loose bodies, synovitis, and osteophytes.

Appellant was seen by Dr. Chenzhong Fu, a Board-certified physiatrist, on December 3, 

2015, who noted treating him since January 13, 2015 for bilateral knee pain. Dr. Fu related that 

appellant experienced bilateral knee pain from daily prolonged walking, carrying heavy mail,

and frequently climbing steps during mail delivery. A right knee MRI scan revealed a meniscal 

tear. In November 2015 appellant had a right knee arthroscopy and postoperatively he

underwent physical therapy and his orthopedist recommended that he not work full duty for three 

months. Dr. Fu noted that appellant’s chronic right knee pain was frequent and recurrent,

secondary to wear and tear, degenerative joint disease, and his job which required prolonged 

walking, mail carrying, and step climbing. He opined that appellant’s bilateral knee degenerative 

and arthritic symptoms were consistent with such work duties. On February 2, 2016 Dr. Fu

noted treating appellant for bilateral knee pain. Appellant reported working as a letter carrier 

since February 1996 which involved repetitive walking and climbing steps. He diagnosed a 

medial meniscal tear, chondromalacia, osteoarthritis, and tendinosis by MRI scan. Dr. Fu opined 

that repetitive walking and climbing steps several hours a day, over 20 years, would cause his

conditions. He diagnosed torn meniscus, chondromalacia patella, osteoarthritis, and patellar 

tendinosis. Dr. Fu noted appellant’s right knee arthroscopy and subsequent physical therapy. He 

indicated that the prognosis of bilateral knee degenerative disease was not favorable. 

On March 29, 2016 OWCP accepted appellant’s claim for torn meniscus of the right 

knee, right chondromalacia patellae, and right patellar tendinosis. 

On April 20, 2016 appellant was treated by Dr. Xiao-ke Gao, a Board-certified 

neurologist, for a sprained right knee. He reported spraining his right knee when walking at 

work. Appellant was diagnosed with a meniscal tear and underwent right knee arthroscopic 

surgery in November 2015. Dr. Gao noted findings on examination of no motor deficits, no 

atrophy or fasciculations, intact sensory examination and deep tendon reflexes, normal gait, 

normal tandem walking, normal range of motion of the knee, and negative straight leg testing 

bilaterally. She referred appellant for physical therapy, two to three times a week for four weeks. 

 

3 This surgery was not authorized by OWCP as work related.
3

In an undated attending physician’s report, Dr. Gao diagnosed right knee sprain due to walking. 

She indicated by checking a box marked “yes” that appellant’s condition was caused or 

aggravated by an employment activity and noted that appellant was totally disabled since

October 7, 2015. In a duty status report dated April 20, 2016, Dr. Gao noted that he was totally 

disabled.

On April 29, 2016 OWCP authorized physical therapy for 12 visits for the period

April 27 to May 27, 2016. 

Appellant filed several Form CA-7 claims for compensation for leave without pay

(LWOP) for total disability during the periods January 2 to April 1, April 12 to 29, and April 30 

to May 27, 2016. The employing establishment human resource specialist noted on the claim 

form that the claimed hours were verified. 

On May 9, 2016 OWCP requested that appellant submit additional information to support 

his claim for compensation commencing January 2, 2016. It noted that the evidence of record

indicated that he stopped work on September 8, 2015 and did not return. OWCP reviewed the 

reports and recommendations of Dr. Fu and Dr. Gao. It indicated that additional evidence was 

needed to establish disability from work during the claimed periods due to the accepted 

conditions. OWCP advised that the medical evidence of record did not substantiate that the 

disability was caused by the work injury because it did not support ongoing, continued disability 

beyond three months postoperation as recommended by Dr. Fu. It held appellant’s case open for 

30 days to afford him the opportunity to submit the requested information. 

Appellant submitted a note from Dr. Golant dated December 1, 2015, who advised that 

he was unable to return to work and would be reevaluated on January 19, 2016. Dr. Golant

noted appellant’s November 4, 2015 right knee arthroscopy. In a January 19, 2016 return to 

work slip, he indicated that appellant could not return to work until further notice. On March 22, 

2016 Dr. Golant returned him to work on May 5, 2016. Appellant underwent physical therapy 

from May 12 to June 2, 2016.

On May 18 and June 7, 2016 appellant was treated by Dr. Gao who diagnosed meniscal 

tear and status post right knee arthroscopic surgery in November 2015. Appellant indicated that 

he could only walk for 15 minutes and had difficulty getting up and climbing stairs. Dr. Gao 

noted findings on examination of no motor deficits, no atrophy or fasciculations, intact sensory 

and deep tendon reflexes, normal gait, normal tandem walking, normal range of motion of the 

knee, and negative straight leg testing bilaterally. She diagnosed right knee pain and 

recommended physical therapy.

On June 10, 2016 appellant filed a Form CA-7 claim for compensation for the period 

May 29 to June 10, 2016. The employing establishment human resource specialist noted on the 

claim form that the claimed 80 hours were verified.

On May 5, 2016 appellant filed a Form CA-7 claim for compensation for LWOP during 

the period October 3, 2015 to April 1, 2016. The employing establishment verified the claimed 

709.55 hours of leave buyback.

By decision dated June 16, 2016, OWCP denied appellant’s claim for compensation for 

total disability for the period January 2, 2016 and continuing. It indicated that it had advised
4

appellant on May 9, 2016 that additional evidence was needed to establish disability beyond the 

three months recommended by Dr. Fu, but that such evidence had not been submitted.

In a June 2, 2016 work capacity evaluation form (OWCP-5c), Dr. Gao diagnosed torn 

meniscus of the right knee and chondromalacia patellae. She noted that appellant could not 

return to work with or without restrictions for one month. Dr. Gao advised that he had not 

reached maximum medical improvement and he was unable to walk at normal speed. 

On June 20, 2016 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on February 16, 2017.

A May 24, 2016 report from Dr. Golant was received on June 27, 2016, wherein he noted 

treatment of appellant for right knee pain status post right knee arthroscopy on 

November 4, 2015. He reported attending physical therapy, but noted continued knee pain with 

climbing stairs, standing, or walking longer than 10 minutes. Appellant indicated that he was

unable to squat or kneel and was not ready to return to work due to his knee symptoms. Findings 

included intact motor strength in all extremities, intact sensory examination, nonantalgic gait, no 

swelling, tenderness of the patellae tendon and peripatellar, discomfort with range of motion, and 

no crepitus. Dr. Golant diagnosed arthritis of the knee and opined that appellant’s residual 

symptoms were likely due to arthritis as the postsurgical inflammation should have subsided. He 

noted that appellant reported significant pain and functional limitations. Dr. Golant advised that 

there was clinical and radiographic evidence of articular cartilage wear consistent with 

osteoarthritis. He recommended intra-articular injections.

On June 22, 2016 OWCP authorized physical therapy for 12 visits from June 13 to

July 13, 2016.

On June 24, 2016 appellant filed a Form CA-7 claim for compensation for total disability 

during the period June 11 to 24, 2016. The employing establishment noted that the claimed 80 

hours of leave without pay was verified.

In a June 30, 2016 development letter, OWCP requested that appellant submit additional 

information to support his claim for compensation for the period October 3, 2015 to 

April 1, 2016. It advised that the medical evidence of record did not support this claimed period 

of disability. OWCP noted that appellant underwent surgery on November 4, 2015, but the

surgery was not authorized by OWCP. 

Appellant provided a June 7, 2016 report from Dr. Gao who diagnosed meniscal tear and 

status post right knee surgery. Appellant reported that he could only walk 15 minutes and had

difficulty getting up and climbing stairs. Dr. Gao noted an essentially normal examination,

diagnosed right knee pain, and recommended physical therapy. In an undated work capacity 

evaluation, she diagnosed right torn meniscus and chondromalacia patellae. Dr. Gao noted that 

appellant could work two to four hours a day, light duty, for one month. Appellant underwent 

physical therapy from June 8 to December 22, 2016. 

On July 1, 2016 appellant was seen by Dr. Tsai C. Chao, a Board-certified physiatrist, for 

progressive right knee pain since 2008. He reported worsening symptoms which prevented him 

from working beginning in September 2015 with difficulties in walking and stair management. 

Appellant underwent arthroscopic surgery on November 4, 2015 and was treated by Dr. Gao 
5

without improvement. Right knee examination revealed positive crepitus with patellar 

compression pain, increased right knee pain on resisted knee extension, swelling and tenderness 

to the medial joint lines, no significant joint effusion, limited range of motion of right knee, and 

significant right quadriceps atrophy. Dr. Chao diagnosed traumatic arthritis of the right knee and 

impaired ambulation. He recommended an x-ray and MRI scan of the right knee, physical 

therapy, and a home exercise program. Dr. Chao opined with reasonable degree of medical 

probability, if the history provided was accurate, appellant’s physical injury was causally related 

to cumulative trauma to his right knee since June 16, 2008 while working as a city carrier. He 

advised that appellant remained temporarily and totally incapacitated.

On July 18, 2016 the employing establishment offered appellant a limited-duty 

assignment as a carrier for four hours a day, effective July 18, 2016. Appellant accepted the job 

offer and returned to work. In a report of termination of disability (Form CA-3), OWCP noted 

that appellant returned to work limited duty as a lobby monitor on July 18, 2016.

Appellant was treated by Dr. Gao on July 5 and 12, August 2 and 30, September 6, 

October 4 and 25, and December 6, 2016 for right knee pain and patellar tendinitis. Dr. Gao

restated appellant’s history and current complaints. She advised that due to his degenerative 

disease of the right knee appellant had chronic pain with difficulty walking. Dr. Gao noted that

appellant was disabled from work since November 2015 due to pain and an inability to squat. 

Findings included difficulty with heel to toe walking, difficulty climbing on the examination 

stool due to right knee pain, knee pain upon flexion, and an inability to squat due to pain. 

Dr. Gao diagnosed meniscus tear of the right knee and right knee pain with chondromalacia. She

recommended physical therapy and home exercises. Dr. Gao noted that appellant had returned to 

work on July 18, 2016 for four hours a day. In duty status reports (CA-17 forms) dated 

September 6, October 4 and 25, and December 6, 2016, she diagnosed right meniscal tear and 

noted that appellant returned to work part-time four hours per day on July 18, 2016. In attending 

physician’s reports (CA-20 forms) dated August 30, October 4 and 25, and December 6, 2016,

Dr. Gao diagnosed meniscus tear, osteoarthritis, and chondromalacia. She checked a box 

marked “yes” indicating that appellant’s condition was caused or aggravated by a work activity. 

Dr. Gao noted that appellant was totally disabled from work for the period October 18, 2015 to 

July 18, 2016 and partially disabled from work beginning July 18, 2016. 

On September 7, 2016 OWCP authorized physical therapy for 12 visits from September 6 

to December 31, 2016.

On December 30, 2016 OWCP requested that Dr. Gao provide an estimated date that she 

expected appellant to return to work full time with or without restrictions.

In an undated report, Dr. Gao reviewed appellant’s history and treatment. She advised 

that, although it was predicted that appellant would require three months of physical therapy 

postsurgery to be able to return to work, recovery was not an exact science. Dr. Gao indicated 

that appellant was continuing to undergo physical therapy so that he could recover from surgery. 

She advised that postoperative physical therapy was requested with the expectation that appellant 

would be able to return to limited-duty work at the end of June or July. Dr. Gao opined that 

appellant was totally disabled from September 8, 2015 to July 17, 2016. In attending physician’s 

reports dated January 31 and April 11, 2017, she diagnosed tear of the meniscus and 

chondromalacia. Dr. Gao checked a box marked “yes” indicating that appellant’s condition was 
6

caused or aggravated by his work. She reiterated appellant’s total disability until July 18, 2016 

and his partially disability beginning July 18, 2016. An April 11, 2017 duty status report (Form 

CA-17) noted that appellant was working limited duty four to six hours daily.

On January 5, 2017 OWCP authorized physical therapy for 12 visits from December 19, 

2016 to March 19, 2017. On February 23, 2017 it authorized physical therapy for 12 visits from 

February 14 to June 14, 2017. Appellant attended physical therapy from January 24 to

March 23, 2017.

By decision dated April 21, 2017, OWCP’s hearing representative affirmed the decision 

dated June 16, 2016, as modified. He noted that appellant was disabled for three months after 

surgery from November 4, 2015 to February 4, 2016 and was entitled to compensation for wage 

loss for this period. However, the hearing representative advised that the evidence of record 

failed to support work-related disability from February 5 to July 17, 2016.

LEGAL PRECEDENT

Section 8102(a) of FECA4sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

specified by this subchapter for the disability or death of an employee resulting from personal 

injury sustained while in the performance of his duty....” In general, the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”

5

 This meaning, for brevity, is expressed as disability from

work.6

For each period of disability claimed, the employee has the burden of proving that he or 

she was disabled from work as a result of the accepted employment injury.7 Whether a particular 

injury caused an employee to be disabled for employment and the duration of that disability are 

medical issues which must be proved by the preponderance of the reliable, probative, and 

substantial medical evidence.8

The Board has interpreted section 8103, which requires payment of expenses incidental 

to the securing of medical services, as authorizing payment for loss of wages incurred while 

obtaining medical services. An employee is entitled to disability compensation for any loss of 

wages incurred during the time he or she receives authorized treatment and for loss of wages for 

time spent incidental to such treatment. The rationale for this entitlement is that, during such 

 

4 5 U.S.C. § 8102(a). 

5 20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548 

(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984). 

6 See Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

7 See William A. Archer, 55 ECAB 674 (2004). 

8 See Fereidoon Kharabi, 52 ECAB 291, 292 (2001). 
7

required examinations and treatment and during the time incidental to undergoing such 

treatment, an employee did not receive his or her regular pay.9

ANALYSIS

The Board finds this case not in posture for decision.

OWCP’s hearing representative failed to make adequate findings in his April 21, 2017 

decision, which granted appellant wage-loss compensation for the period November 4, 2015 to 

February 4, 2016, but found the evidence insufficient to support work-related disability from 

February 5 to July 17, 2016. The Board finds that it is unclear what absences are incidental to 

the accepted injuries of torn meniscus of the right knee, right chondromalacia patellae, and right 

patellar tendinosis. 

In a development letter dated June 30, 2016, OWCP noted that the right knee 

arthroscopic surgery performed on November 4, 2015 was not authorized by OWCP. In the 

April 21, 2017 decision, the hearing representative noted that appellant was disabled from work 

for three months after surgery from November 4, 2015 to February 4, 2016 and was entitled to 

compensation for wage loss for this period based apparently on the recovery time for surgery. 

However, OWCP’s hearing representative made no clear finding on whether the surgery giving 

rise to the accepted disability should be authorized and OWCP did not consult an OWCP 

medical adviser regarding this matter.

10

 Further, OWCP did not consider whether appellant was 

entitled to compensation for wage loss incidental to medical treatment for his work-related 

injuries which was incurred during the claimed periods.11 As noted, it authorized physical 

therapy from April 27 to May 27, 2016, June 13 to July 13, 2016, September 6 to December 31, 

2016, December 19, 2016 to March 19, 2017 and February 14 to June 14, 2017. The authorized 

physical therapy overlaps the period of compensation for wage loss requested by appellant from 

January 2 to July 17, 2016. However, the hearing representative did not address whether 

appellant was entitled to compensation for wage loss incidental to attending authorized physical 

therapy for his work-related injuries.

Proceedings under FECA are not adversary in nature, nor is OWCP a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence. It has the obligation to see that justice 

is done.12 

The Board finds that the case must be remanded to OWCP for preparation of a statement 

of accepted facts and referral of the matter to an OWCP medical adviser, consistent with OWCP 

 

9 Sean O’Connell, 56 ECAB 195 (2004).

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

Chapter 2.810.10(f) (September 2010) (where the claimant fails to request prior authorization for surgery, OWCP 

should instruct the claimant to submit the minimum documentation from the appellant’s physician, as well as the 

operative report, and then refer the case for an evaluation of the written record by an OWCP medical adviser).

11 See supra note 9.

12 John W. Butler, 39 ECAB 852 (1988). 
8

procedures, to determine whether the November 4, 2015 arthroscopic surgery should be 

considered authorized and if so, the period of temporary total disability incidental to the surgery. 

OWCP shall also consider what, if any, periods of disability are incidental to the authorized 

physical therapy or other authorized medical treatment. Following this and such other 

development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further action 

consistent with this decision. 

Issued: March 13, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board