United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Long Branch, NJ, Employer 

__________________________________________ 

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Docket No. 16-0961 

Issued: May 1, 2017 

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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 4, 2016 appellant, through counsel, filed a timely appeal from a December 1, 

2015 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 over the merits of this case. 

ISSUES 

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

compensation benefits effective May 8, 2015 because she no longer had residuals of the accepted 

 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

bilateral meniscus tears and right knee synovitis; and (2) whether appellant established that she 

had any continuing employment-related disability or condition after May 8, 2015 due to the 

accepted conditions. 

On appeal counsel asserts that the opinion of an OWCP referral physician is insufficient 

to meet OWCP’s burden of proof, and that appellant’s attending Board-certified orthopedic 

surgeon, Dr. Mark W. Gesell, was consistent in his opinion that the degenerative arthritis in her 

right knee was due to her employment injury. 

FACTUAL HISTORY 

This case has previously been before the Board.3 In an August 18, 2010 decision, the 

Board found the case was not in posture for decision as to whether appellant established that she 

was entitled to disability compensation for the period April 16, 2003 to May 1, 2006. The Board 

remanded the case to OWCP to compare appellant’s actual earnings to those wages earned on the 

date of injury, to be followed by an appropriate decision.4 Following the Board’s August 18, 

2010 decision, on November 3, 2010, OWCP accepted that appellant sustained a recurrence of 

disability on August 13, 2010 when she underwent authorized right knee surgery. It began 

development of her pay rate.5 In a second Board decision dated February 5, 2013, the Board 

again remanded the case for OWCP to ascertain appellant’s earnings for the period January 24, 

2003 through December 31, 2006.6

 3

 OWCP accepted that appellant, a 44-year-old part-time flexible clerk, injured her knees on April 24, 2002. 

Appellant stopped work that day and did not return. The claim was initially accepted for meniscal tear and synovitis 

of the left knee. On November 2, 2002 Dr. Christopher D. Johnson, a Board-certified orthopedic surgeon, 

performed arthroscopic surgery for a torn left medial meniscus. Appellant retired on disability effective 

September 8, 2003 and began private employment in 2004. The claim was expanded to include a right knee 

meniscal tear. On August 13, 2010 Dr. Johnson performed authorized arthroscopic repair for a torn medial 

meniscus of the right knee. He provided follow-up care through December 9, 2010. On September 20, 2011 

Dr. David B. Fox, a Board-certified physiatrist, began treating appellant on a monthly basis. 

4

 Docket No. 09-1783 (issued August 18, 2010). 

5

 OWCP obtained outside earnings information for the years 2003 through 2007 and calculated appellant’s 

average weekly outside earnings for each calendar year from 2003 through 2007, applied the Shadrick formula, and 

issued a September 29, 2011 decision explaining the calculation of the pay rate for compensation purposes. On 

March 30, 2012 an OWCP hearing representative affirmed the September 28, 2011 decision. Appellant, through 

counsel, filed a timely appeal with the Board. 

6

 Docket No. 12-1437 (issued February 5, 2013). After the February 5, 2013 decision, OWCP, in a March 28, 

2013 decision, noted that appellant’s wage-loss compensation for the years 2003 through 2006 was recalculated and 

the Shadrick formula applied, yielding an $8,770.47 underpayment. It indicated that this amount would be 

forwarded to OPM to be applied to a debt owed for a dual benefit. On August 8, 2013 OWCP asked appellant to 

provide evidence to support her disability claims from February 1, 2011 to July 26, 2013. In a November 14, 2013 

decision, OWCP denied appellant’s claims for compensation for that period, finding that the medical evidence was 

insufficient. On June 19, 2014 counsel requested reconsideration. OWCP requested information regarding 

appellant’s employment in the private sector. In a June 27, 2014 decision, it vacated the November 14, 2013 

decision finding that this decision was issued prematurely as questions remained regarding appellant’s level of 

disability and wages earned during the claimed period (February 1, 2011 to July 26, 2013). OWCP indicated that 

further development would be undertaken. 
3

Dr. Gesell an associate of Dr. Johnson had begun treating appellant in February 2012.7

 A 

January 2, 2014 magnetic resonance imaging (MRI) scan of the right knee demonstrated multiple 

degenerative changes involving the entire knee joint, joint effusion, status post medial 

meniscectomy, and grade 1 sprain of the medial collateral ligament. The report noted that a 

repeat medial meniscal tear could not be excluded. 

On February 14, 2014 appellant elected to receive Office of Personnel Management 

(OPM) retirement benefits for the period January 24, 2003 to December 31, 2006. 

In a February 5, 2014 treatment note, Dr. Gesell noted appellant’s complaint of 

increasing bilateral knee pain. He reviewed the right knee MRI scan and left knee x-rays and 

diagnosed right knee osteoarthritis and effusion and left knee osteoarthritis. In a February 17, 

2012 report, Dr. Gesell noted her complaint of right knee pain. Following x-ray and physical 

examination, he diagnosed right knee osteoarthritis, status post right knee arthroscopic partial 

medial meniscectomy. Dr. Gesell continued to treat appellant.

In a July 2, 2014 treatment note, Dr. Gesell again reported appellant’s complaint of 

bilateral knee pain. Bilateral knee examination demonstrated tenderness along the proximal 

medial tibia and medial joint line with crepitus and pain with knee range of motion. Lachman 

examination, posterior drawer, Steinmann, and McMurray’s tests were negative. Patellofemoral 

examination demonstrated crepitus with active knee extension, and negative apprehension and 

compression tests. Appellant was able to actively flex and extend each knee against resistance 

with normal quadriceps and hamstring strength. No joint effusion was present in the left knee. 

The right knee had a small amount of joint effusion. Dr. Gesell advised that appellant had 

degenerative changes in her right knee, predominantly along the medial aspect, and only mild 

degenerative changes in the left knee. He diagnosed left knee pain and right knee osteoarthritis. 

In correspondence dated July 14, 2014, Dr. Gesell noted that he began treating 

appellant’s knees in February 2012. He related a past history of arthroscopic repair on the left in 

“2001” and 2010 on the right. Dr. Gesell indicated that appellant had work-related diagnoses of 

bilateral medial meniscus tears and that she currently had degenerative changes consistent with 

bilateral knee osteoarthritis, more advanced on the right. He opined that the degenerative 

changes were related to her medial meniscus diagnosis, explaining that the meniscus acts as a 

protective shock absorber in the knee. Dr. Gesell continued that damage to the medial meniscus, 

including surgical repair, could lead to damage to the articular cartilage in the knee which leads 

to early degenerative changes in the knee joint and osteoarthritis. He described appellant’s 

current complaints of bilateral persistent knee pain with degenerative changes, advising that 

these were related to the meniscal tears she sustained while working at the employing 

establishment. Dr. Gesell concluded that there was no evidence of prior injury to her knees. 

In September 2014, OWCP referred appellant to Dr. Jeffrey Lakin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In an October 27, 2014 report, Dr. Lakin 

described her medical and surgical history, and noted his review of the medical record. He 

indicated that appellant was currently working as a house aid and had complaints of right knee 

pain, which required the assistance of a cane. Dr. Lakin’s examination of the right knee revealed 

 7 Supra note 3. 
4

minimal effusion and minimal medial joint line tenderness. The left knee had no effusion and 

minimal patellar tenderness. Quadriceps and hamstring strength were 5/5 bilaterally, and there 

was no anterior or posterior varus or valgus instability in either knee. Dr. Lakin advised that 

appellant did not have signs of meniscal tears in either knee with minimal synovitis on the right. 

He opined that the swelling was not due to a work-related injury that occurred 12 years 

previously and was due to degenerative arthritis in the right knee, noting that she had been 

working several different jobs in the interim period. Dr. Lakin indicated that, while appellant 

had some disability due to the arthritis, this was not related to the work injury, and she could 

return to restricted duty. He further noted that the first MRI scan that showed degenerative 

changes in her right knee was in 2010, eight years after the work injury. Dr. Lakin concluded 

that any restrictions appellant had were due to the nonemployment-related arthritis of the right 

knee. 

OWCP asked Dr. Lakin to clarify whether appellant’s left knee condition had resolved. 

In a supplemental report dated December 16, 2014, Dr. Lakin again noted that the left knee 

examination was unremarkable, the meniscal tear had been surgically repaired, and the condition 

had resolved. 

On March 3, 2015 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits. It found that Dr. Lakin’s opinion that she no longer had disability or residuals 

due to the accepted conditions constituted the weight of the medical evidence. 

Appellant, through counsel, disagreed with the proposed termination. Medical evidence 

submitted included a February 17, 2015 treatment note in which Dr. Gesell noted that she had a 

history of bilateral knee pain. Dr. Gesell provided physical examination and bilateral knee x-ray 

study findings. He indicated that appellant had advanced degenerative changes in her right knee 

consistent with osteoarthritis, which was aggravated the past week when she fell and landed on 

her right side. Dr. Gesell further opined that she had mild degenerative changes in her left knee. 

He prescribed a right knee brace and medication. In a treatment note dated April 2, 2015, 

Dr. Fox noted appellant’s complaint of significant right knee pain and milder left knee pain and 

that she worked as a life skills instructor. He related her report that Dr. Gesell recommended a 

total knee replacement on the right. Following examination, Dr. Fox advised that he would like 

to discuss appellant’s case with Dr. Gesell before proceeding with knee injections. 

In a May 15, 2015 decision, OWCP terminated appellant’s wage-loss compensation and 

medical benefits, effective May 8, 2015. It found that the weight of the medical evidence rested 

with the opinion of Dr. Lakin who advised that the knee conditions had ceased with no residuals. 

On May 26, 2015 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. Dr. Fox submitted procedure notes dated May 7 and 19, and June 1, 

2015, in which he described corticosteroid injections to her right knee. In June 4, 2015 

correspondence to counsel, Dr. Gesell described appellant’s medical history and treatment 

regarding her knees, indicating that he began treating her on February 17, 2012. He noted that he 

last saw her on February 17, 2015 following a recent fall on her right knee for which he fitted her 

with a hinged knee brace. Dr. Gesell indicated that he reviewed Dr. Lakin’s reports dated 

October 27 and December 16, 2014. He advised that appellant was initially treated by his 

associate Dr. Johnson for a left knee work injury, noting that Dr. Johnson first mentioned a right 
5

knee problem in 2004 when she was no longer working for the employing establishment. 

Dr. Gesell related that he had been treating appellant for degenerative changes in her right knee. 

He opined that her right knee symptoms were not related to her work-related left knee injury. 

Dr. Gesell continued that when appellant’s right knee symptoms worsened, she would benefit 

from a right total knee replacement. He concluded that she had mild degenerative changes in her 

injury-related left knee, but did not believe that there is a correlation between the two knees. 

At a hearing, held on September 11, 2015, counsel maintained that the termination should 

be reversed because Dr. Lakin’s opinion had insufficient rationale. He asserted that Dr. Gesell 

provided a rationalized opinion regarding the progression of appellant’s knee degenerative 

changes.8

By decision dated December 1, 2015, an OWCP hearing representative affirmed the 

May 15, 2015 decision terminating appellant’s compensation and medical benefits. She found 

that OWCP appropriately accorded the weight of the medical opinion evidence with Dr. Lakin, 

an OWCP referral physician. 

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.9 

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.10 

ANALYSIS -- ISSUE 1 

OWCP accepted that on April 24, 2002 appellant sustained a left knee meniscus tear and 

synovitis. Appellant had left knee arthroscopic surgery on November 2, 2002. The claim was 

expanded to include a right knee meniscal tear, which was repaired arthroscopically on 

August 13, 2010.11 OWCP terminated appellant’s wage-loss compensation and medical benefits 

effective May 8, 2015, based on the opinion of Dr. Lakin, an OWCP referral physician. The 

Board, however, finds Dr. Lakin’s opinion is insufficiently rationalized to meet OWCP’s burden 

of proof to terminate appellant’s wage-loss compensation and medical benefits. 

The medical evidence relevant to the May 8, 2015 termination included Dr. Lakin’s 

reports dated October 27 and December 16, 2014. On October 27, 2014 Dr. Lakin noted 

appellant’s complaints of right knee pain, which required the assistance of a cane. He advised 

 8

 Counsel also requested that OWCP resolve the issue of appellant’s entitlement to wage-loss compensation. 

OWCP continued to develop the issue of appellant’s entitlement to wage-loss compensation up to the date of the 

termination, May 8, 2015. 

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

10 Id.

11 Supra note 3. 
6

that she did not have signs of meniscal tears in either knee and only had minimal synovitis on the 

right which, he opined, was not due to a work-related injury and was due to degenerative arthritis 

in the right knee. Dr. Lakin concluded that, while appellant had physical restrictions, these were 

not due to the April 2002 employment injury, but were due to the nonemployment-related 

arthritis of the right knee. Following an OWCP request for additional information, on 

December 16, 2014, he indicated that appellant’s left knee examination was unremarkable noting 

that the meniscal tear had been surgically repaired and that the condition had resolved. Dr. Lakin 

did not sufficiently explain the basis for his conclusory opinion. 

Dr. Gesell, an attending Board-certified orthopedic surgeon, supported continuing 

medical residuals due to the accepted conditions. On July 14, 2014 he advised that appellant had 

degenerative changes consistent with bilateral knee osteoarthritis, more advanced on the right. 

Dr. Gesell opined that the degenerative changes were related to her medial meniscus diagnosis, 

explaining that the meniscus acts as a protective shock absorber in the knee, also noting that 

surgical repair could lead to damage to the articular cartilage in the knee which would lead to 

early degenerative changes in the knee joint and osteoarthritis. He opined that appellant’s 

current complaints of bilateral persistent knee pain with degenerative changes were related to the 

meniscal tears she sustained during her federal employment. 

As there is no clear, well-rationalized medical opinion evidence establishing that 

appellant’s accepted conditions had resolved without residuals requiring further medical 

treatment and that appellant had no disability for work due to her accepted conditions, OWCP 

has not met its burden of proof to terminate her wage-loss compensation and medical benefits 

effective May 8, 2015.12

In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot. 

CONCLUSION 

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

compensation benefits effective May 8, 2015. 

 12 J.J., Docket No. 16-0984 (issued November 17, 2016). 
7

ORDER 

IT IS HEREBY ORDERED THAT the December 1, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: May 1, 2017 

Washington, DC 

 

 Christopher J. Godfrey, 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