United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Dayton, OH, Employer

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Docket No. 17-0942

Issued: February 9, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 30, 2017 appellant filed a timely appeal from a March 21, 2017 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 the claim.

ISSUE

The issue is whether appellant has met her burden of proof to establish total disability 

from work for the period October 14, 2015 through February 3, 2016, causally related to her 

accepted employment-related left knee injuries.

FACTUAL HISTORY

OWCP accepted that on February 14, 1996 appellant, then a 29-year-old letter carrier, 

stepped in a hole and twisted her left knee, which caused a left knee strain, left medial meniscus 

tear, and chondromalacia of the left knee. It later accepted that, on January 16, 1997, she twisted 

 

1 5 U.S.C. § 8101 et seq. 
2

her left knee when she stepped out of her delivery vehicle, causing a new traumatic left knee 

strain and left lateral meniscus tear.2 The employing establishment terminated appellant from 

employment, effective March 20, 1998, for failure to follow instructions.

On January 21, 1999 appellant underwent an authorized arthroscopic partial lateral 

meniscectomy.3 In an April 21, 1999 letter, Dr. Donald W. Ames, an attending orthopedic 

surgeon, opined that appellant required permanent work restrictions. He administered periodic 

left knee injections. Appellant participated in physical therapy in April and May 1999. She

remained off work.

On October 26, 2006 and November 15, 2006 OWCP obtained a second opinion 

regarding appellant’s work capacity from Dr. Alvars Vitols, an osteopathic physician Boardcertified in orthopedic surgery. Dr. Vitols opined that appellant no longer had any residuals from

the accepted left knee injuries, and returned her to full-time sedentary work. 

OWCP found a conflict in the medical opinion evidence between Dr. Vitols, for the 

government, and Dr. Ames, for appellant, regarding appellant’s work capacity and the presence 

of continuing injury-related residuals. To resolve the conflict, it appointed Dr. James 

Rutherford, a Board-certified orthopedic surgeon, as an impartial medical examiner. 

Dr. Rutherford submitted a February 12, 2007 report, in which he opined that the accepted left 

knee injuries had remained active and partially disabling. He found that appellant could perform 

full-time sedentary work with occasional lifting and carrying up to 15 pounds, occasional 

bending, standing, and walking, and no stooping, climbing, or crawling. 

Based on Dr. Rutherford’s opinion that appellant was no longer totally disabled from

work, OWCP referred appellant for vocational rehabilitation. Following vocational testing and a 

job placement effort, appellant began work as a part-time receptionist and cleaner at a private 

sector flooring business in June 2008. As the flooring company could not offer her enough 

hours, appellant began work as a cashier/clerk at a private sector discount store effective July 19, 

2008, earning wages of $7.50 an hour. OWCP paid appellant wage-loss compensation for the 

difference between her date-of-injury wages and her actual earnings as a cashier/clerk. 

By notice dated December 9, 2008, OWCP notified appellant of its proposal to reduce her 

wage-loss compensation benefits based on her ability to perform the constructed position of 

receptionist, Department of Labor, Dictionary of Occupational Titles, DOT #237.367.038, with 

entry level wages of $415.20 a week in appellant’s commuting area as of a March 30, 2008 labor 

market survey. It afforded her 30 days to submit additional evidence or argument pertinent to 

the proposed reduction of her wage-loss compensation. Appellant did not submit additional 

evidence on this issue.

By decision dated January 12, 2009, OWCP reduced appellant’s wage-loss compensation 

effective January 10, 2009, based on her projected ability to earn $415.20 a week as a 

 

2 OWCP accepted the January 16, 1997 claim under OWCP File No. xxxxxx958. The February 14, 1996 claim 

was developed under File No. xxxxxx811. OWCP had administratively combined File Nos. xxxxxx958 and 

xxxxxx811, with the latter serving as the master file.

3 OWCP paid appellant wage-loss compensation for temporary total disability on the daily rolls commencing 

January 21, 1999 and on the periodic rolls commencing October 10, 1999. 
3

receptionist. It paid wage-loss compensation under the January 12, 2009 loss of wage-earning 

capacity determination (LWEC) on the periodic rolls commencing January 10, 2009.4

On February 17, 2012 appellant underwent an authorized left arthroscopic partial lateral 

meniscectomy, performed by Dr. Ames. OWCP paid appellant wage-loss compensation for 

temporary total disability commencing February 17, 2012.

In a March 6, 2012 compensation termination sheet, OWCP noted that appellant had been 

entitled to wage-loss compensation for temporary total disability following the February 17, 

2012 surgery, “so terminating the LWEC.”

5

To obtain updated information concerning appellant’s work capacity, on April 22, 2013, 

OWCP obtained a second opinion report from Dr. E. Gregory Fisher, a Board-certified 

orthopedic surgeon. Dr. Fisher noted that appellant had remained unemployed. He opined that 

the accepted left knee chondromalacia had remained active and partially disabling. Dr. Fisher

returned appellant to full-time limited duty, with walking and standing permanently restricted to 

two hours a day, and lifting, pushing, and pulling limited to 10 pounds frequently and 20 pounds 

occasionally. He found that appellant had attained maximum medical improvement. 

As Dr. Fisher opined that appellant was no longer totally disabled from work, OWCP 

referred appellant for vocational rehabilitation on May 2, 2013. A May 8, 2013 labor market 

survey had identified the positions of receptionist (DOT #237.367.038) and hospital admitting 

clerk (DOT #237.367-038) as within the medical limitations provided by Dr. Fisher and

commensurate with her vocational experience and aptitudes. 

By notice dated May 15, 2013, OWCP notified appellant of its proposal to reduce her 

wage-loss compensation based on her ability to perform the constructed position of receptionist, 

with entry level wages of $415.20 a week. It afforded her 30 days to submit additional evidence 

or argument pertinent to the proposed reduction of her wage-loss compensation. Appellant did 

not submit additional evidence on this issue. In a June 26, 2013 decision, OWCP reduced her

wage-loss compensation effective that day, based on her ability to earn $415.20 a week in the 

constructed receptionist position. It found that these wages properly represented appellant’s

LWEC.

Appellant remained off work. She underwent periodic injections by Dr. Ames for 

continued left knee immobility and pain. Dr. Ames diagnosed “left knee degenerative change 

secondary to the avascular necrosis of the lateral condyle of the femur,” and localized 

osteoarthritis of the left knee.

 

4 Appellant advised OWCP that she stopped working her private sector job in September 2009 after her left knee 

gave out. She remained off work. Appellant underwent periodic medical treatment for residuals of the accepted left 

knee injuries.

5 Dr. Ames provided periodic progress notes. To help determine appellant’s work capacity, OWCP obtained a 

second opinion report on July 31, 2012 from Dr. Albert E. Becker, Jr., a Board-certified orthopedic surgeon. 

Dr. Becker noted that appellant had not returned to work. He opined that appellant could not perform the duties of a 

receptionist due to continued left knee immobility and pain. Dr. Becker returned appellant to limited-duty work for 

four hours a day, with restrictions.
4

Dr. Ames submitted an October 14, 2015 medical report in which he opined that

appellant was unsafe as her left knee had given way several times, causing her to fall. He noted 

that physical therapy had not been effective and that bracing “would not help this knee.”

Dr. Ames recommended a partial left knee replacement. In a separate October 14, 2015 report,

he explained that appellant had developed “avascular necrosis about the left knee lateral distal 

femur” and “post-traumatic osteoarthritis of the left knee in the lateral compartment.” 

Appellant’s symptoms had worsened such that she fell “on a regular basis because of giving way 

of the left knee secondary to pain.” Dr. Ames recommended a unicompartmental left knee 

replacement. 

In a January 21, 2016 report, Dr. Ames noted that when he had examined appellant on 

October 14, 2015, he discussed her left knee condition. He opined that appellant’s left knee had 

worsened “to where the knee is giving out and she is falling and unsafe which is a concern for 

her to continue working.”

OWCP interpreted Dr. Ames’ January 21, 2016 letter to indicate that appellant had 

claimed a recurrence of total disability due a material change or worsening of the accepted left 

knee injuries. In a January 29, 2016 development letter, it notified appellant of the type of 

additional evidence needed to demonstrate a recurrence of total disability, including a 

comprehensive, narrative medical report from her attending physician supporting that her current 

condition had remained causally related to the accepted left knee injuries, and describing the 

specific job duties that appellant could no longer perform as of the date of the claimed recurrence 

of total disability. OWCP afforded appellant 30 days to submit such evidence.

On February 4, 2016 appellant underwent authorized partial left knee arthroplasty to 

address sequelae of the accepted left knee injuries. OWCP paid her wage-loss compensation for 

temporary total disability commencing February 4, 2016.6 Dr. Ames submitted reports dated 

January 21, February 4 and 22, 2016, in which he reiterated that appellant had been totally 

disabled from work commencing October 14, 2015. In a report dated May 9, 2016, he returned 

appellant to work effective August 8, 2016.

By decision dated May 27, 2016, OWCP denied appellant’s claim for wage-loss

compensation for temporary total disability for the period October 14, 2015 to February 3, 2016 

because the medical evidence of record failed to demonstrate a material worsening of the 

accepted left knee injuries. It found that Dr. Ames opined only that appellant might sustain a 

future injury were she to fall due to the deteriorated condition of her left knee. OWCP noted that 

fear of future injury was not compensable under FECA.7

In an appeal form postmarked June 24, 2016, appellant requested a telephonic hearing 

before a representative of OWCP’s Branch of Hearings and Review. 

To ascertain the nature and extent of appellant’s continuing injury-related condition, 

OWCP obtained a second opinion from Dr. Gerard Papp, an osteopath Board-certified in 

 

6 OWCP continued to pay appellant wage-loss compensation for temporary total disability through February 4, 

2017 and continuing. It placed her case on the periodic roll effective February 5, 2017. 

7 Supra note 1.
5

orthopedic surgery. In a November 16, 2016 report, Dr. Papp opined that appellant no longer 

had any residuals of the accepted left knee injuries or any nonoccupational conditions of the left 

knee, but remained disabled from her date-of-injury position due to limited left knee motion 

caused by the February 4, 2016 authorized surgery. In a January 10, 2017 supplemental report,

Dr. Papp opined that her left knee condition was idiopathic in nature. He posited that the 

objective loss of left knee extension could be attributed to noncompliance with physical therapy, 

although the medical record did not indicate any failure to cooperate. Dr. Papp found appellant 

medically unable to resume her date-of-injury position as a letter carrier, or perform the duties of 

a receptionist. 

During the hearing, conducted on February 1, 2017, appellant contended that Dr. Ames’

reports demonstrated her total disability for work commencing October 14, 2015. She provided 

progress reports from Dr. Ames dated from June 20, 2016 through January 4, 2017. Dr. Ames

held appellant from work due to postoperative knee pain. Appellant participated in physical 

therapy. In a February 20, 2017 report, Dr. Ames opined that she was unable to perform the 

duties of a cashier/clerk from October 2015 through February 2016 “due to severe osteoarthritis 

and avascular necrosis of the knee joint” as she could not “stand for long periods and squat 

often.”

By decision dated March 6, 2017, a hearing representative affirmed OWCP’s May 27, 

2016 decision, finding that the medical evidence of record failed to demonstrate a material 

worsening of the accepted left knee injuries, sufficient to warrant modification of the June 26, 

2013 LWEC determination. OWCP found that Dr. Papp’s opinion as second opinion examiner 

represented the weight of the medical evidence.

In a March 17, 2017 file memorandum, OWCP advised that it would set aside Dr. Papp’s 

November 16, 2016 and January 10, 2017 reports as they were equivocal and contradictory.

By decision dated March 21, 2017, OWCP reversed the March 6, 2017 decision, and 

found that appellant had met her burden of proof to modify the June 26, 2013 LWEC 

determination. It found that Dr. Ames’ October 14, 2015 medical report demonstrated that the 

accepted left knee injuries had worsened such that appellant could no longer perform the duties 

of a receptionist, the position on which OWCP had based the June 26, 2013 LWEC 

determination. OWCP authorized payment of wage-loss compensation for total disability 

commencing February 4, 2016. However, it further found that the medical evidence of record 

failed to demonstrate that appellant was totally disabled from all work for the period October 14, 

2015 through February 3, 2016. 

LEGAL PRECEDENT

An employee seeking benefits under FECA8 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.9 Under FECA, the term 

“disability” is defined as an inability, due to an employment injury, to earn the wages the 

employee was receiving at the time of the injury, i.e., an impairment resulting in loss of wage-

 

8 Supra note 1.

9

Joe D. Cameron, 41 ECAB 153 (1989).
6

earning capacity.10 For each period of disability claimed, the employee has the burden of 

establishing that he or she was disabled from work as a result of the accepted employment 

injury.11 Whether a particular injury causes an employee to become disabled from work and the 

duration of that disability are medical issues that must be proved by a preponderance of 

probative and reliable medical opinion evidence.12

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so would essentially allow an employee to self-certify his disability and 

entitlement to compensation.13 

ANALYSIS

OWCP accepted that appellant sustained left knee strains, a left medial meniscus tear, left 

lateral meniscus tear, and chondromalacia of the left knee. It paid wage-loss compensation for 

temporary total disability from January 21, 1999 through June 2008, followed by compensation 

for partial wage loss through January 9, 2009, and compensation under a formal LWEC 

determination effective January 10, 2009. Appellant stopped work on February 17, 2012 to 

undergo authorized left knee surgery. OWCP set aside the LWEC and resumed payment of total 

disability compensation commencing February 17, 2012.

By LWEC determination dated June 26, 2013, OWCP reduced appellant’s wage-loss 

compensation based on her projected earnings in the selected position of receptionist. It paid her

wage-loss compensation under the LWEC through February 3, 2016. Appellant underwent 

partial left knee arthroplasty on February 4, 2016. OWCP resumed payment of compensation for 

temporary total disability effective February 4, 2016. In its March 21, 2017 decision, however, it

found that the medical evidence did not establish that appellant was totally disabled from all 

work for the period October 14, 2015 through February 3, 2016. 

Appellant has the burden of proof to demonstrate by the weight of the substantial, reliable 

and probative evidence that she was totally disabled from work for the claimed period due to the 

accepted left knee injuries.14 

In support of her claim, appellant provided medical reports from Dr. Ames, an attending 

Board-certified orthopedic surgeon. In his report of October 14, 2015, Dr. Ames explained that 

appellant could not be safe at work as she had fallen several times when her left knee gave way. 

In a January 21, 2016 letter, he recalled that, on October 14, 2015, he found that appellant was 

“falling and unsafe which is a concern for her to continue working.” Dr. Ames submitted reports 

dated from January 21 to February 22, 2016, in which he noted that appellant had been totally 

 

10 See Prince E. Wallace, 52 ECAB 357 (2001).

11 Dennis J. Balogh, 52 ECAB 232 (2001).

12 Gary J. Watling, 52 ECAB 278 (2001).

13 Fereidoon Kharabi, 52 ECAB 291 (2001).

14 Alfredo Rodriguez, 47 ECAB 437 (1996). 
7

disabled from work commencing October 14, 2015. However, he did not explain how and why 

the accepted left knee injuries would totally disable appellant from work for the claimed period. 

In the absence of such medical rationale, Dr. Ames’ opinion is insufficient to meet appellant’s 

burden of proof.15 Insofar as he held appellant from work out of concern that she might continue 

to fall, the Board has held that fear of future injury is not compensable.16

The Board notes that OWCP advised appellant by January 29, 2016 letter of the type of 

evidence needed to establish her claim for wage-loss compensation, including her physician’s 

well-reasoned explanation of how the accepted injuries disabled her from all work for the dates 

claimed. However, appellant has not submitted such evidence. Therefore, she failed to meet her 

burden of proof to establish total disability from work for the period October 14, 2015 through 

February 3, 2016.

On appeal, appellant contends that Dr. Ames’ October 14, 2015 medical report 

demonstrates total disability from all work for the period October 14, 2015 through 

February 3, 2016. As explained above, she has not submitted sufficient rationalized evidence to 

establish disability for work for the claimed period.

Appellant may submit additional 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 appellant failed to meet her burden of proof to establish total 

disability from work for the period October 14, 2015 through February 3, 2016, causally related 

to her accepted employment-related left knee injuries.

 

15 Supra note 13.

16 L.J., 59 ECAB 408 (2008).
8

ORDER

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

Compensation Programs dated March 21, 2017 is affirmed.

Issued: February 9, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board